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HomeMy WebLinkAbout02-4234JOHN HOPIadNS Plaintiff PATRICIA HOPKINS Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA NO. CIVIL TERM od.- 9.&~J ~t* CIVIL ACTION-LAW COMPLAINT FOR CUSTODY 1. The Plaintiff is John Hopkins, residing at 2263 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania. He resides with his wife, Susan Hopkins, her five (5) children and the subject minor child. 2. The Defendant is Patricia Hopkins, residing at 14 Darrell Drive, Randolph, Massachusetts 02368. She resides with the parties' other child, Michael Hopkins. Name Heather Hopkins 3. The Plaintiff seeks custody of the following child: Present Residence Age 2263 Walnut Bottom Road, Carlisle, PA 15 years The child was born on December 20, 1986. She is presently in the custody of John Hopkins who resides at 2263 Walnut Bottom Road, Carlisle, Pennsylvania. During the child's lifetime, she has resided with the following persons and at the following addresses: Name a. John Hopkins Patricia Hopkins Address 282 Neversink Road Liberty, NY Date December 1986- August 1996 Patricia Hopkins Patricia Hopkins 1888 Springbrook Road Medford, OR 2759 Pennington Drive Medford, OR d. Patricia Hopkins Boylston Street Newton, MA Patricia Hopkins f. John Hopkins 14 Darrell Drive Randolph, MA 2263 Walnut Bottom Road Carlisle, PA August 1996 - March 1997 March 1997 - June 2002 June 2002 - July 2002 July 2002 - August 23, 2002~ August 23, 2002 - Present 4. The relationship of Plaintiff to the child is that of Father. The father of the child is John Hopkins, currently residing at 2263 Walnut Bottom Road, Carlisle, Pennsylvania. He is married. 5. The relationship of Defendant to the child is that of Mother. The mother of the child is Patricia Hopkins currently residing at 14 Darrell Drive, Randolph, Massachusetts. She is not married. 6. The Plaintiff has participated as a party or ~vimess, or in another capacity, in other litigation concerning the custody of the child in another court, namely a custody action in Sullivan County Family Court in Monticello, New York in July 1997. A copy of the Court Order is attached as 'Exhibit A'. a. The court ordered sole custody of the parties' minor children, Heather Hopkins and Michael Hopkins, to their mother, Patrida Hopkins. 1The subject minor child was placed m Plaintiff's custody and care upon agreement of fl~e parties. b. The court ordered that their father, John Hopkins, may have visitation with the children for five (5) weeks during the summer recess as well as one (1) week during each of the Christmas recess and the Spring/Easter recess. 7. Pennsylvania courts have jurisdiction over this matter pursuant to the Uniform Child Custody Jurisdiction Act, 23 Pa.C.S.A. [ 5341 et seq. 8. A court of this Commonwealth may modify a custody decree from another state pursuant to 23 Pa.C.S.A. [ 5355. 9. The Plaintiff has no information of a custody proceeding concerning the child pending in a court of this Commonwealth. 10. The Plaintiff does not know of a person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child. 11. The best interest and permanent welfare of the child will be served by granting the relief requested for reasons including the following: a. The child has only spent a total of two-and-a-half weeks with her mother since May 2002 due to the following: 1.) Defendant moved from Oregon to Massachusetts in May 2002 2.) the child remained in Oregon with friends of the family to finish school 3.) the child lived with her father from the end of June 2002 until the end of July 2002 4.) the child spent three (3) weeks in Arizona with her half-sister, her father and her step-mother in August 2002 5.) the child moved in with her father on August 23, 2002 The child has a psychological bond with Father; Since August 2002, the mother's contact with the child has been solely by telephone initiated by the child; The child received failing grades in school in Oregon for the 2001-2002 school year resulting in her failing the 9th grade; The child desires to reside and attend school in Pennsylvania; Father has enrolled the child in school at the Carlisle High School; The guidance counselor at the Carlisle High School had recommended the child be placed in the 9th grade due to the child failing the 9th grade in Oregon; however, her father was able to persuade and convince the guidance counselor to enroll the child in the l0th grade; The child has been receiving above-average grades on all graded materials since the beginning of the 2002-2003 school year; Father and step-mother require the child and her step-siblings to complete all homework assignments immediately after school; j. Step-mother assists the child with homework, if necessary; k. The child has been involved in a workout program with her step-mother three (3) times per week at the YMCA; 1. The child participates in the S.H.A.R.E. project with her step-mother and her step-siblings; m. The child attends Church and Sunday School on a weekly basis with her Father and step-mother; n. Father placed the child on his medical insurance; o. Father continues to provide a stable environment for the child; p. The child follows all household rules, including a 10:00 p.m. bedtime, abiding by all curfews, and assisting with household chores; q. The mother has not acted in the child's best interest by denying the father contact with the child as per the terms of the existing custody order; r. The child will develop a better relationship with her mother if they are not residing together; s. The child has had past issues with depression and feels she would be happier residing in Pennsylvania with her father; 12. Each parent whose parental rights to the child have not been terminated has been named as parties to this action. WHEREFORE, the Plaintiff prays that This Honorable Court modify the New York court order to grant him primary physical custody of their child, Heather Hopkins. Respectftflly submitted, ABOM & KUTULAKIS, L.L.P. Date: September 5, 2002 /%//~ K~aara W~. ~agg~/~ I.D. #86914 8 South Hanover Street, Suite 204 Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiff VERIFICATION I, John Hopkins, hereby verify that the facts set forth in the foregoing Custody Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 24904, relating to unsworn falsification to authorities. jo pkins At a term of the Family Court of the State of New York, held in and for the County of Sullivan, at Monticello, New York, day of July, 1997· In ~he Matter of a P~oceedlng Under Article 6 of the Family Court Act, .0~~ JOHN HOPKINS, ~' "~ ~~ 2 PATRIC ~a~INS, Petitioner, Respondent. ..................................... x This matter having come on before the Court for trial upon the modification petition filed by Petitioner dated August 20, 1996, the violation petition filed by Petitioner dated September 4, 1996, violation petition filed by Respondent dated August 9, 1996, petition filed by Loran Shlevin, Esq. on behalf of Respondent dated September 9, 1996, and re-submitted as an amended petition on September 10, 1996, commencing July 28, 1997, and Petitioner having appeared in person and having proceeded Pro Se, and Respondent having appeared in person and by her attorney, Loran Shlevin, Esq., and the children having appeared by their Law Guardian, Isabelle Rawich, Esq., and the Court having considered the testimony and evidence presented and having rendered a decision dated March 16, 1998 and entered March 17, 1998; NOW IT IS H~REBy OP. DERED, that sole custody of the parties, minor children, to wit: Heather Hopkins dob 12/20/86 and Michael Hopkins dob 11/25/89, Shall remain with the Respondent; and it is further ORDERED, that the Respondent is to provide the Petitioner with as much advance nOtice as is pOSsible with respect to any major events in the lives of the children in Order that the Petitioner may have an Opportunity to participate therein, if he so chooses; and it is further ORDERED, that the Petitioner may have visitation with the children for five weeks during the SUmmer recess from School from on or about July 1st (depending on air flight Schedules) until 35 days later on or about the Conclusion of the first Week in August, thus allowing sufficient time for the Childrens, return to Respondent and for the preparation for the new SChool year; and it is further ORDERED, COmmencing with the 1998 Spring/Easter recess period, the Petitioner may exercise visitation with the children for One week during the Christmas recess and for one week during the Spring/Easter recess, in Such event that said recess periods OCcur through the childrens, School System. Due to the difficulty in making travel arrangements around the Christmas holiday, the parties Shall remain flexible in Order that the best pOSsible arrangements are made for the Childrens, welfare; and it is further ORDERED, there Shall be such Other and further visitation as the parties may agree; and it is further ORDERED, that in Such event as the Petitioner,s business or personal SChedule permit him to exercise visitation with the children in Oregon, he Shall not be precluded from exercising such visitation, so long as such visitation does not interfere with the childrens' school schedule; and it is further ORDERED, that the Respondent shall be responsible for the cost of transporting the children to and from Petitioner's residence for the summer visitation; and it is further ORDERED, that the Respondent shall be responsible for one- half of the transportation cost of the Petitioner's exercise of Christmas visitation with the children, and one-half the transportation cost of the Petitioner,s exercise of Spring recess visitation with the children, said cost to be borne by Respondent for the transportation of the children to the Petitioner's residence in New York State ; and it is further ORDERED, that the Petitioner shall be responsible for one- half of the transportation cost of the Petitioner's exercise of Christmas visitation with the children, and one-half the transportation cost of the Petitioner's exercise of Spring recess visitation with the children, said cost to be borne by Petitioner for the transportation of the children from the Petitioner,s residence in New York State to the Respondent and the children's home in the State of Oregon; and it is further ORDERED, that both parties shall allow reasonable telephone access between the children and the other party with a minimum of one telephone call per week; and it is further ORDERED, that on the first and third weekend of each month, Respondent shall ensure that the children telephone Petitioner on Sunday evening between 7:00 p.m. and 9:00 p.m. Oregon time; and it is further O~DERED, that on the second and fourth weekend of each month, the Petitioner shall initiate telephone contact with the children between 7:00 p.m. and 9:00 p.m. Oregon time; and it is further ORDERED, that the children shall have reasonable access by telephone or otherwise to the other parent when not in their care; said cost of such telephone calls to be paid for by the party then having physical custody of the child or children; and it is further ORDERED, that nothing contained in this order shall preclude the parties or the children from corresponding with the other; and it is further ORDERED, that the Respondent shall continue counseling for the children with Ms. Bradshaw or another therapist and shall compel the child or children to attend until such time as discharged by the child's therapist; and it is further ORDERED, that the Petitioner shall participate in said counseling and otherwise cooperate and enlist the assistance of a local therapist when the children are at his residence, if necessary; and it is further ORDERED, that the local therapist shall cooperate with the therapist in Oregon; and it is further ORDERED, that the violation petition dated August is hereby dismissed in the interests of justice. Dated: ~, 1998 K~' New York E N T E R 9, 1996, HON. MARIANNE O. Judge of the Family Court NOTICE OF ENTRy ~LE~SE ~E ^DWS~ ~'~T'r~ Oocu~E ~ ILY ~v~ ~RT ~ / ~ , ~1 ~ ~ ~ NOTICE OF SETTLEMENT PLEASE take notice that an order of which the within is a true copy will be presented for settlement to the Hon. Marianne O. Mizel, J.F.C., one of the judges of the within named Court, at Monticello, New York on April 29, 1998 at 9:00 A.M. Dated: April 14, 1998 Yours, etc., LORAN SHLEVIN, ESQ. Attorney for Petitioner Office and Post Office Address PO Box 417 Callicoon, NY 12723 To Mr. John Hopkins PO Box 1125 Liberty, NY 12754 Isabelle Rawich, Esq. PO Box 945 South Fallsburg, NY 12779 APPEAL NOTICE NOTICE: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS FOR CONTEMPT OF COURT. PURSUANT TO SECTION I 113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEII~I' OF THE ORDER BY APPELLANT IN COURT, 3S DAYS FROM THE DATE OF MAILING BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST. UPON:SERVICE DATE: /%. Petitioner Respondent Petitioner's~,t~rne.y ~,~_Ro s ponde ~;~o~rUr~.y Law Guardi na/~'L~'~''~- Parent/Guardian DHFS Counsel County Attorney Other Other Other Other ~:"by mail by mail by mail 'X. by mail '~' by mail by mail by mail by mail by mail by mail by mail by mail personal service aersonal service aersonal service ~ersonal service ~ersonal service )ersonalservice ~ersonalservice )ersonalservice )ersonal service ~ersonal service . ~ersonal service personal service JOHN HOPKINS Plaintiff PATRICIA HOPKINS Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA NO. CML TERM CML ACTION-LAW CERTIFICATE OF SERVICE AND NOW, this 5th day of September, 2002, I, Kara W. Haggerty, Esquire, hereby certify that I did serve a true and correct copy of the foregoing Custody Complaint upon the Defendant by placing or causing to be placed said copy in the United States Mail, Certified Mail, return receipt requested, to Defendant addressed as follows: Patricia Hopkins 14 Darrell Drive Randolph, MA 02368 Date: Attorney I.D. No. 86914 Suite 204 8 South Hanover Street Carlisle, PA 17013 (717) 249-0900 Attorn~ for Plaintiff JOHN HOPKINS PLAINTIFF PATRICIA HOPKINS DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : 02-4234 CIVIL ACTION LAW : IN CUSTODY : ORDER OF COURT AND NOW, Friday, September 13, 2002 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator, at 4th Floor, Cnmherland Count~ Courthouse, Carlisle on Thursday, October 03, 2002 at 10:30 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 l~resent at the conference. Failure to al~pear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all 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. Verney, Esq. 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 JOI~IN HOPKINS, Plaintiffs Vo PATRICIA HOPKINS, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : NO. 02-4234 CIVIL TERM : IN CUSTODY PETITION TO ENFORCE A CUSTODY DECREE OF ANOTHER JURISDICTION PURSUANT TO Pa. C.S.A. §5356 AND NOW, comes Petitioner/Defendant, Patrieia Hopkins, by and through her attorneys, Marylou Matas, Esquire, and Griffie & Associates, and files this Petition to Enforce a Custody Decree of Another Jurisdiction Pursuant to Pa. C.S.A. §5356, and in furtherance thereof states as follows: 1. Your Petitioner is the above named Defendant, Patricia Hopkins, an adult individual currently residing at 14 Darrell Drive, Randolph, Norfolk County, Massachusetts. 2. Your Respondent is the above named Plaintiff, John Hopkins, an adult individual currently residing at 2263 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania. 3. Petitioner and Respondent are the natural parents of two minor children, namely, Heather Hopkins, born December 20, 1986, and Michael Hopkins, born, November 25, 1989, (hereinafter referred to collectively as "Children" or individually as "Child"). 4. Petitioner and Respondent were divorced by Order of Court, dated September 10, 1993. 5. The parties' divorce Order incorporated the parties' custody stipulation, awarding primary physical custody of the children to Petitioner. 6. Petitioner relocated with the children to Oregon in 1996. 16. Respondent filed a Complaint for Custody on September 5, 2002, to the above docket number, and a custody conciliation conference is scheduled for October 3, 2002, a copy of said Complaint and Order being attached hereto and incorporated herein by reference as Exhibit "C". 17. Preliminary objections have been filed contemporaneously with this Petition, objecting to the Commonwealth's jurisdiction of the proceedings, as Respondent's only claim that the Court of Common Pleas of Cumberland County, Pennsylvania has jurisdiction in this matter is based upon his retention of custody of the child contrary to a valid Court Order. 18. Petitioner believes and therefore avers that she will be successful in her Preliminary Objections and the issue of custody will not be heard in this jurisdiction. 19. Petitioner desires for the Child to be returned to her sole physical custody immediately, pursuant to the terms of the Order of Court, dated March 16, 1998. 20. Petitioner retained the services of local counsel to pursue the within Petition and attached Preliminary Objections and Respondent should be responsible for the costs of attorney's fees incurred by Petitioner, pursuant to Pa. C.S.A. §§5349(c) and 5356(b). 21.Kara W. Haggerty, Esquire, counsel for Respondent, has been advised of the fact that the within Petition is being filed with the Court and as to the date of filing. WHEREFORE, Petitioner requests your Honorable Court to grant the following reliefi a.) Enforce the Order, dated March 16, 1998, from the Family Court Division, Sullivan County, New York; c.) f.) Dismiss Respondent's Complaint for Custody, pursuant to 23 Pa. C.S.A. §5349; Order Respondent to return the child to Petitioner's sole physical custody immediately; Order Respondent to pay the costs of travel associated with the return of the child, pursuant to 23 Pa. C.S.A. §§5349 and 5356; Order Respondent to pay attorney's fees, in the amount of $500.00, pursuant to 23 Pa. C.S.A. §§5349 and 5356; and Award other relief as the Court may deem necessary. Respectfully submitted, GRIFFIE & ASSOCIATES .~ttorney fiar~etitioner 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 VE~RIFICATION I, Marylou Matas, Esquire, counsel for PATRICIA HOPKINS, hereby swear and affirm that the facts set forth in this document are true and correct to the best of my knowledge, information, and belief. I have sufficient knowledge or information and belief as to the averments stated in these pleadings, based upon my personal knowledge and infoimation obtained from my client. This statement is made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Date: IO/l /(--)~- aristas, ESqmi'e At .a term of the Family Court of the State of New York, held in and for the COunty of ~ulliyan, at Monticello, New York, on _ PRESENT. HON. MARIANNE O. MIZEL, JFC ..................................... x ~n the ~at~er of a ~roceed~ng ~nder ~o~ BoPKr~s, aqainmt- PATKICIA BOPKINS, - This matter having.come on before the Court for trial upon the modification pet'ition filed by Petitioner dated August 20, 1996, the violation petition filed by Petitioner dated september 4, 1996, violation petition filed by Respondent dated August 9, 1996, petition filed by Loran Shlevin, Respondent dated September 9, 1996, and re-submitted as an amended petition on September 10, 1996, conmencing July 28, 1997, and Petitioner having aBpeared in person and having proceeded Pro Se, and Respondent having appeared in person and by her attorney, Loran shlevin, Zsq., and the children having appeared by their Law ~uardl&n, Isabell~ Rawich, Esq., and the Court having considere~ the testimony&nd evidence presented and having rendered a decision dated March 16, 1998 and entered Marc~ 17, 1998; ~P~D, that sole cust~ of t~e parties' m{nor chi~re~, EXHIBIT"A" S~P--18--2~2 ~4:4~ PM PATRICIA.~ROWNING 5~1 73~ 8825 P. ~2 11/25/69, sha~l remain with the Respondentl and it is further O~DEJ~D, that the RespOndent is. to provide the Petitioner with as much advance notice as is Possible with respect to any major events in the lives of ~he children ~n. order that the Petitioner may have an Opportunity to partlcl ate ~ so chooses; and it is further ~ herein, if he chil~en for five ~eks durin- t~ ~ with on or a~u~ Jul~ · .... boo1 fr~ z -~= (ae~ndi~g on air ~light schedules) un~il ays later on or a~ut 2he ooncluston o~ 2he E~s2 ~ek ~n ugust, thus allying sufficient t~ for ~e child=ess, return ~o RespOndent and for ~he Prep~a~i~ for =he new suh~l for on~ek dur~ ....... ~he sp~ng/gas~e~ ~ec~= ~_ _ - ne ~k ---, ~u sues event ~hat Said recess ~uur through ~e ch~l~e~s, 8oh~l eyst~. Due holiday, the P~ties shall c~ flex,la ~ order tha~ the ~'~i~rrange'~s are --de for ~. ~hil~., --l fare, ~d the · Parties may agree~ and it is further as O~Dt~B~, that /n such event as the Petitioner. . h~l~en i- ...... ' ~se ~isl~ation with ~he o · - ~-~w~, ~e Sh~li not ~ Pre~XUded f=~ ex~uiSing SEP--18-2002 ~4:44 PH PATRICIA.~ROWNING 541 ?~¢ 88~5 P.e~ such visitation, so long as such visitation does not interfere with the childrens' school schedule} and it is further O~DI~ED, that the Respondent shall be responsible for the cost o~ transporting the children to and from Petitioner's residence for the summer visitation~ and it is fur=her ORDereD, that the Respondent shall be responslble for one- half of the transportation cost of the Petitioner's exercise of Christmas visitation with the children, and one-half the transportation cost of the Petitioner's exercise of S~£ng recess visitation with the children, said cost to be borne byaespondent for the transportation of the children to the Petitioner's residence in New York State ; and'it is further O~DERED, that the Petitioner shall be responsible for one- half of the transportation cost of the Petitioner's exercise of Christmas visitation with the children, and one-half the transportation cost of the Petitioner's exercise of Spring recess visitation with the children, said cost tO be Borne by Petitioner for the transportation of the children from the Petitioner's residence in New York State to the Respondent.and the children,s home in ~he state of Oregon; and it is further O~DF~ED, that both Darties shall allow reasonable telephone access between the children and the other party with a m~nimum of one telephone call per wcuk; and it is further O~ED, that on the first and thirdweekend of each month, Respondent shall ensure that the children telephone Petitioner on Sunday evening between 7:00 p.m. and 9100 p.m. Oregon ti~e; and · it is further $EP--18--2~02 ~5~20 PM PATRICIA.~ROWNIN~ P.01 O~D~D, that on the second and fourth weekend of each month, the Petitioner shall initiate telephone contact with the children between 7:00 p.m. and 9:00 p.m. Oregon time; and it is further O~O~, that the children shall have reasonable access b~ telephone or otherwise to the other pa=eat when not in their care; maid cost of such teleph°ne calls to be paid for by the party then having physical custody of the child or children1 and it is further O~, that nothing contained in this order shall preclude the paz~cies or the children from corresponding with the other; and it is further O~DEi~D, that the Respondent shall continue counseling for the children withMs. Bradshaw or another therapist and shall compel the child or children to attend until such time as discharged by the child's therapist; and.it is further OltDB~D, that ~he Petitioner shall participat~ in said counseling and otherwise cooperate and enlist the assistance of a local therapist when the children are at his residence, if necessary; and it is further O~D~P~D, that the local therapist shall cooperate with the therapist in Oregon; and it is further O~DE~ED, that the violation petition dated August 9, hereby dismissed in the interests of justice. 1998 New York 1996, ENTER Judge of the Family Court $EP--18--20~2 85:21 PM PATRICIA.~ROWNIN~ 541 ?~4 $$25 P.02 NOTICE OF SETTLEMENT PLEASE take notice that an order' of which the within is a ~rue copy will be presented for eettlement to the Hon. Marianne o. Mizel, J.F.C., one of the judgem of the within oa~d court, at Monticello, NeW York on April 29, 1998 et 9~00 A.M. Dated~ April 14, 1998 LO~AN SHLEVIN, ESQ. Attorney for Petitioner Office and Post Office Address PO Box 417 · Callicoon, NY 12723 Mr. ~ohn Hopkins PO Box 1125 Liberty, NY 12754 Isabelle Rawich~ Esq. PO Box 945 ~outb Fallsburg, NY' 12779 05:21 PM PATRICIA.~ROWNIN~ 541 ?~4 88~5 APPEAL NOTIOE NOTIOEI YOUR MLLFUL FAILURE TO OBEY THli ORDER MAY, AFTER OOUNT HEARING, REIULT IN YOUR OOMMrrlVlINT TO ,JAIL POR A TERM NOT TO DOE, ED IIX MONTHI Ii'OR OONT~MPT OF' OOUNT. PURIUANT TO IEOTION I I 18 OP THE FAMILY OOURT AG'T, AN APPEAL FROM THIS ORDER MU~q' Ell TAKEN WrrHIN ~0 DAYS OF RECEIPT OF THE ORDER APPI~LLANT IN OOURT, ~B DAYS FROM THK DATK OF MAII.JNO BY 1'HI OLERK OF OOUri', OR :~O DAYI AFTER 8ERVlOE BY A PANTY Oll THE i. AW GUARDIAN UPON THE APPELLANT, WHI41~HIVBR 18 EARLIEST, UPON: I ,/~_Petlfloner ..~'by meil ~Resp~ ~ ~ ~il P~itione~,~ -- by _~Responde~~-~5 ! by ~al, ParengGua~ian ~ by mail ~DHF8 Counael ~ mail . Coun~ A~o~y .~ by ~il ~er _ ~ ~11 .. O~er ~ mall O~er by mail ~ther by ~il personal service personal service personal service personal service personal service -- i~ersonal service personal sentice , personal service ~ personal service ~ personal service ~ peraonal service personal service STATE OF NEW YORK FAMILY COURT: COUNTY OF SULLIVAN In the Matter of a.Proceeding under Article 6 of the Family Court Act, WITHIN IS A TRUE OOPY OF THE ORIGII',~,~L. ON FI~ IN ~ SULL~N~0UN~ F~I~ (DEP~) CLERK OF THE ~R~ JOHN HOPKINS, -against- PATRICIA HOPKINS, Petitioner, Respondent. PRESENT: DECISION Docket Nos. V-2~5/~56-92 HON. MARIANNE O. MIZEL, J.F.C. ~',~ ' .--.. JOHN HOPKINS, Petitioner, Pro Se c....~,- ..,~ : LOP, AN SHLEVIN, ESQ., attorney for Respoudent, Patricia Hopkins ISABELLE Pe\WICH, ESQ., Law Guardian for the minor children, Heather and blichael Hopkins M1ZEL, M. O., J.: Several petitions have been filed by these parties, two are violation petitions, one is for modlficaUon of a previous order of this court and one petition seeks to set aside a ~emporary order of this court and permit a modification of the previous order of this court. The matters were tried over several days commencing July 28, 1997. Prior to the trial date, John ltopkins had been represented by Cheryl Maxim, Esq. On trial, Mr. Hopkins represented himself. Patricia Hopkins throughout has been represented by Loran Shlevin, Esq. The children, Michael, ,late of l, irth November 25, 1989, and Heather, date of birth December 20, 1986, were represented by their law guardian, Isabelle Rawich, Esq. The petiUons may be summarized as follows: 1. ViolaUon petition filed by Patricia Hopkins against John Hopkins, dated August 9, 1996 seeking a return of the children to her custody on August 9, 1996. The order to show cause signed Iv the co~,-t co,~tained a provision requir4ng Mr. Hopkins to return the children forthwith to their EXHIBIT "B" mother; 2. Modification petition filed by John Hopkins against Patricia Hopkins dated August 20, 1996 requesting that the children's residence not be removed from New York State and that he be granted custody of the children. The order to show cause signed by the court contained a provision requiring Ms. Hopkins to not remove the children from New York State; 3. Violation petition filed by John Hopkins against Patricia Hopkins dated September 4, 1996 seeking immediate custody of the children in that Ms. Hopkins had left New York State with the children and he had no infmmation as to their intended relocation address. The order to show cause signed by the court provided that Mr. Hopkins shall have temporary custody of the children and may seek law enforcement agency assistance in acquiring his children; and 4. Handwritten petition filed by Loran Shlevin, Esq. on behalf of Patricia Hopkins against John Hopkins dated September 9, 1996 and re-submitted as an amended petition on September 10, 1996 (when it was typewritten) seeking a stay of the te,nporary custody order and a modification of the prm4ous permanent order of custody to permit Ms. Hopkins to retain custody of the children but to relocate with the children to the State of Oregon and an agreement to submit to the jurisdiction of this court as to this issue. A subsequent court conference, conducted while blt. Hopkins was en route to locate his children, resulted in a temporary order on consent allowing the children to remain ir~ Oregon with their mother, and pro,,ided for temporary visitation for Mr. Hopkins in Oregon with his children. An alcohol at, u.~e ~a]uation and mental health evaluation were subsequently ordered. In the interim and as the trial date approached, Mr. Hopkins terminated his relationship with Ms. Maxim who had ably represented him throughout the proceedings and, although advised of his right to counsel, represented himself on the trial of these issues. The trial of these matters occurred over several days during which Mr. Hophins called the following to testily: John Hopkins (petitioner), John Hopkins (petitioner's son), Virginia King, Susan Hopkins, blichael DeFranh, Richard Gordon and Gayle Bush. Ms. Hophins, through her attorney, called the following to testify: Patricia Hopkins (respondent), Patricia Hopkins (Mr. 2 Hopkins' sister-in-law) and Ann Hopkins ( Mr. Hopkins' daughter from a previous relationship). The following documents were received in evidence on Mr. Hopkins' case: A letter to Patrolman Hopkins and the evaluation report made by Richard Gordon, CSW. On Ms. Hopkins' case, the following documents were received: the report of JoAnnemarle Bradshow, the children's therapist; a le~er from the school guidance counselor, Regina Wagner, dated March 19, 1997, regarding Ann Hopkins and another report of the guidance counselor on behalf of Ann Hopkins dated March 24, 1997. After the trial concluded, the Court received several ~ ?arte communications including a letter from the principal of Mr. Hopkins' daughter Aa~n's school regarding letters from the school o,~ Ann Hopkins' behalf that were introduced into evidence at trial as well as a substance abuse evaluation of Mr. t-Iopkins. These documents were submitted after the trial had been concluded and will not he considered in rendering this decision. They were not properly introduced, they were not offered on consent by opposing party's counsel or by the law guardian, nor did any of the parties or the law guardian have the opportunity to call the maker of the letter or report for cross-examination purposes. The Court will further add that the apparent reasons for which these letters or reports are sought to be introduced after fact-finding were not conclusions which weighed heavily in the Court's mind in rendering this decision. The Court has considered the testimony and evidence presented and renders the following decision. After hearing Ms. Hopkins' and Mr. Hopkins' versions of what occurred regarding the August 9, 1996 visitation, the Court dismissed the petition filed Aug,zst 9, 1996 in the interest of justice. 13oth parties acknowledged that they had modified the terms of Judge Kiedaisch's order of July 22, 3 1996 on their own. According to the order, Mr. Hopkins was to have the children from August 1 until Tuesday morning August 6, 1996. Mr. Hopkins did not receive the children on August 1, 1996 but rather th~ children were transported to him on August 3 or 4. Ms. Hopkins agreed to extend the time to return the children, she stated, until Friday, August 9. Mr. Hopkins acknowledged that the children were to stay longer but believed time of pick-up to be Augt~st 10. Both parties indicated that the extension of visitation time was through negotiations with their then ten-year old daughter, Heather. The versions of what happened differ with regard to the time of pickl up. I,~ any event, Ms. Hopkins acquired the children on Friday, August 9 with police accompaniment and after the entry of a temporary order mandating the children's return. There is no p~rl~o-~e to be accomplished by pursuing this petition. The gravamen of the issues before this Court are whether ~I.~. Hopkins should retain sole custody of the children especially since she intends t~ maintain their residence in Oregon. Finding a violation of this petition will not advance the causes of either parent. In fact, since both parents acknowledge that they modified the terms of the order on their own, this Court is hard-pressed to find a violation of the terms of the order. The petition of August 9, 1996 is dismissed in the interests of justice and the court clerk shall prepare an order of dismissal based on this decision. With regard to the remaining petitions, a summary of the testimony is helpful. Mr. I-Iopkins testified on his own behalf. That he is angry with the means by which his ex- wife relocated to Oregon is an understatement. Mr. Hopkins testified that he had had a good relationship with his children and that he regularly visited with them for four years. When he and his wife separated and executed a separation agreement in or about July 22, 1992, Mr. Hopkins 4 consented to Patricia Hopkins having sole custody of the children. Initially, his visits occurred every weekend but then, in July, 1996, were modified by Judge Kiedaisch to alternate weekends on the parties' consent. Mr. Hopkins believes that this modification and a support proceeding brought by Ms. Hopkins in March, 1996 were filed with full knowledge and the plan that she and the children would be relocating to Oregon. Mr. Hopkins acknowledged that currently the parties cannot discuss anything and that although Ms. Hopkins had informed him that she bad been laid off fi:om her full- Ume posiUon with the local hospital, he threatened that she could not plan to remove herself from the area with the children. Although he opiued that he would have worked something out with Ms. t t,,pkins if she had discussed her situation with him, now he was unwilhng to negotiate a compromise seeking this trial and the Court's decision. Mr. Hopkins could not acknowledge that this stated position on his part would be harmful to the children but instead placed full blame for the current consectuence of a trial on his former wife's actions. Mr. I topkins outlined that he understood that Ms. Hopkins was a licensed real estate agent, a hcensed insurance agent and a licensed radiologist-technician. Further, Ms. Hopkins, per his tesUmony, had received employment in Sullivan County Community. General Hospital and had a pending lawsuit from which he anticipated she would make recovery. Further, he understood that /vis. Hopkins could have interviewed for employment at a Goshen Hospital or worked at Pankin insurance offices but refused. Mr. Hopkins further testified that Ms. Hopkins had been employed at both a doctor's office and at the state prison based on statements she told him. He does not believe that the relocation was necessary for her employment opportunities. Mr. l topkins outlined in contrast that he has married and has a home with seven bedrooms and seven beds. "It is a clean well-kept house." All of the children (his wife's five children and his own four children, including Heather and Michael) have their own beds. Mr. Hopkins indicated that the children got along with his new wife, Susan, and that there has never been a question voiced about Susan Hopkins' ability to care for any of the children. Mr. Hopkins is extremely bitter that he was not consulted regarding these potential plans, that Ms. Hopkins never consulted with him regarding changing visitation to meet her need to relocate and that Ms. Hopkins left for Oregon state in violation of a temporary order requiring her to remain iu New York State pending court determination. Had he been initially consulted, he reasoned that "he would have made arrangements regarding visitation a,~d probably said OK- but the way she did it is wrong." Mr. I-topkins testified that there was a conti,~uous course of conduct between Patricia [-lopkins and her attorney to sever any ties between him and his children, yet on cross-examination, he admitted that he had not in the past been refused visitation with the children and had not sought visitation with the children since they went to Oregon, and he refused to have a two-week visitation with the children at or about the time of the court proceedings. Mr. t-topkins further acknowledged that he needs to become closer to his children before he could regain custody and have it succeed. On cross-examination, Mr. Hopkins acknowledged that in December, 1995, Ms. Hopkins telephoned him and informed him she had been laid off from Community General Hospital. He also acknowledged that she indicated that if she couldn't find work she would look for work out of the area. His acknowledged response was that she could not leave with his children. Mr. Hol~kins testified on cross-examination from the law guardian that he knew from his converation with Heather 6 on or around August 9 that Patricia Hopkins and the children were planning a move. Heather stated to him that Ms. Hopkins did not want her to tell her father where they were moving. Mr. Hopkins further indicated that he did not confront Ms. Hopkins about her plans to relocate after he learned on or about August 20 that she was selling all of her household items at a yard sale. The last time he had visited with the children was August 9, 1996 and, at that time, he returned the children only after a court order had entered. He did not pursue any court interventions or do anything else until August 20, 1996. Mr. Hopkins revealed that he was not financially able to pay for transportation for the children from Oregon to Liberty. Mr. Hopkins on cross-examination testified that he was an alcoholic and had spent time at Conifer Park in Albany at an alcohol treatment facility. He was positively discharged from that facility on March 29, 1992 and had not had a drink since then. He acknowledged that Susan t-topkins, his current wife, occasionally drinks beer and that she may have asked Heather to bring her a can of beer. Mr. Hopkins attended his last AA meeting a few years ago. The testimony of Mr. Hopkins revealed that 'Ann and Jotm Hopkins, Mr. Hopkins' children from his first marriage, had resided with their mother. Initially, Ann came to live with him and soon thereafter John also moved h~ with Mr. Hopkins. Ann Hopkins currently does not reside with him because she would not agree to follow his rules and chose instead to see her boyfriend seven days a week. As a result, ham resides with Mr. Hopkins' brother and sister-in-law, also Patricia Hopkins, because they allow her to date seven days a week. He denied that he ever abused his daughter but acknowledged that he has no relationship with her now having last spoken with her on January 13, 1997. Notwithstanding the circumstances of how the children Came to be in Oregon, Mr. Hopkins testified that he calls every Sunday to speak with his children. Heather has wrltien to him but he does not respond since he is not a big letter writer. Mr. Hopkins acknowledged that Ms. Hopkins is a good mother except for what she did to her children with this relocation. Mr. Hopkins called John Hopkh~s, Jr. to testify. John Came to Court having completed a three-week visitation with his mother following a two-week visitation of his mother with him in Sullivan County. John has resided with his father for approximately two years. Prior to that, he visited with his father frequently. Both of his parents have a good relatiox~ship and seem to talk about visitation arrangements. From the time be ,vas little until age 11, visitation with his father included Patricia 14opkins. John did not voice any complaints regarding any of the women with whom his fatber bas had a relationship after his parents separated--Patricia Hopkins, his father's former girlfriend Oa,.,le Bush, a~d his father's Current wife, Susan. Susan treats him well and does homework witI~ him as does his father. John in turn helps the other children with their homework. fie has neVer Seen bis father dri~tk nor has bis father ever been abusive to him. He acknowledged that his ladder is a stricl disciphnarian__bis father "expects you to do what he requires." John is responsible for taking out the garbage, keeping his room clean, keeping bis grades up and taking C~re of the turkey, lie does not feel that is too much for his tither and step-mother to ask of him. Job,, indicated that he had frequent Contact with Michael and Heather up until about a year before, i.e__,, last COntact around August, 1996. When asked what he missed, John stated ' hat they 'T are not arot, nd; they were always there and then they Were,~'t." John indicated that Heather and Michael's relationship witl~ their father appeared to be good and that the visits Were good too. John 8 is not adverse to visiting with Michael and Heather in Oregon and "would like to see everybody work this out." John continues to see his sister, Ann, even though she does not reside in the household. When she was at school, he saw her there. Now that she has graduated, he does visit her at her boyfriend's house or at her home with their aunt and uncle. John stated that his father knew of this relationship. Virginia King was called to testify by John Hopkins. She is a neighbor whose home is across the street from Mr. Hopkins. She has never seen Mr. Hopkins drink or be violent with any of his children although Susan Hopkius on occasion might have a beer in Ms. King's presence. From her viewpoint, ~l:.I-Iopkins' relationship with/~1ichael and t-Ieather was close: Mt. Hopkins played with them, sat with them, watched television with them and cuddled with them. Mr. Hopkins' home is immaculate and orderly. ~Is. King has not telephoned Michael or Heather in Oregon although she has asked about them. Susan Hopkins was c~ed to testify by John Hopkins. Susan t-lopkins married Mr. Hopkins on June 2, 1996 after a one-year relationship. She has five children all of whom were visiting their father in California for the month of July. Susan Hopkins testified that John Hopkins has an affectionate and understanding relationship with all of his children: Ann, John, Heather, and Michael. There was no domestic violence in the home nor did Mr. Hopkins drink alcohol. Ms. Hopkins on occasion is lef~ to mind all o~ the children in the household which totaled nine when l~eath~r and Michael were there and Ann still resided there. The home is r~n on a schedule and is organized. A~ter the boys went to bed, Susan Hopkins and the remaining "girls" would do the dinner dishes, rent movies~ and watch TV. Katie and Heathe~.and Susan would exercise together doing exercise dance tapes or did crafts (bead work) or watched TV or made popcorn. Generally, all of the children got along. Susan Hopkins indicated that Michael and Heather were always welcome in the household and that at times their visitation would be extended on consent. On August 1, 1996, they were not able to have Heather and Michael because Susan Hopkins was ill with a virus which all of the other children caught. Susan is aware that Michael has an asthmatic condition and that there were times when he came for visitation without his medication. At that time, arrangements would be made to get his medication. Never has Michael displayed an emergency situation when he needed his medication. Ms. Hopkius indicated that she and Mr. Hopkins on occasions have disagreements but they do not rise to the level of yelling or screaming. She has on occasion yelled in the house but cannot recall when Mr. Hopkins has yelled although he has on occasion called for John very loudly. Mr. Hopkins speaks to the children when necessary in a stem voice, yet the children are not afraid of him and have played with him, jumped on him and generally interacted with him. Rules are set by both of them although she has bent the rules somewhat as the occasion merited (i.e., allowing Ann or John to stay at a rdatives home later than 9 p.m.). Ms. Hopkins does not see any reason why Michael and Heather should not be with their father and believes the children have been taken unfairly from their father. Ms. Hopkins indicated that the visitation arrangements currently being exercised by her f,)rn~er h~band were negotiated and agreed upon befween Ms. Hopkins and bev former husband with 10 in terventlon by Mr. Hopkins. Negotiations for visitation between Mr. Hopkins and Heather and Michad Were made by Heather with her father. Ms. Hopkins did not believe this was a prob/em for Heather or Michael or Patricia or John Hopkins to have arrangements made through the children. Ms. Hopkins did not believe that Mr. Hopkins might al]ude to not having visitation with his children because he could not afford it; she believed they can afford to transport the children for visitation. Michael DeFrank was called to testify on behalf of Mr. Hopkins. Mr. DeFrank is Mr. · Hopkins' superior at the Liberty Police Department. He outlined that Mr. Hopkins is a patrolman and bas worked for the Liberty Police Department for 18 years. Initial/y, Mr. Hopkins was a juvenile officer. There have never been any dcohol allegations or allegaUous of domestic violence against Mr. 14opkins. There are several /etters in blt. Hopkins files including uniform violations or ]ack of responsibdity as a senior officer. He has received decorations, j,~ several life saving awards, meritorious service awards and a merit award. A request for extension of leave time was denied to Mr. Hopkins when he faded to return from Oregon in search of his chddren, blt. Hopkins general/y earns slx weeks of vacation time per year which year vans June to June. Mr. Richard I. Gordon was called by Mr. Hopkins. Mr. Gordon was qualified as an expert i,~ child custody evah, ations. Mr. Gordon conducted the psychological evaluation of the parties and the chddren which report has been received in evidence. Mr. Gordon was concerned that he was not able to obser,,e Mr. Hopkins with the children and voiced that COncern in testimony and in his report-. This was as a result of Ms. Hopkins reluctance to remove the children from school in Order to return ~tb them to New York State, thus, effectively eliminating the possibility of the children being seen 11 13y the psychologist with their father. Mr. Gordon higldighted that Heather expressed some tear of visitation with her father: that she did not want to be near him and was afraid that her father might take her/rom Oregon and not return her to her mother. Michael did not express the same fear but did indicate that SOmetimes he did not want to be with his father when his father ye//ed at him. Both chi/dren are receiving counseling and, as a par~ of the evaluation, Mr. Gordon spoke with their COUnselor JoAnnemarie Bradshaw. The report of Ms. Bradshaw was to have been attached to Mr. Gordon's report. It was separately iutroduced and received into evidence. IJoth Ms. Bvadshaw and /~r. Gordon concluded that both parents Were very angry and Were imparting this to their children. Iqeather indicated that her parents fought a lot and that she resemed both of her parents complaining about the other to her or placing her in the middle of their controversy. It was Mr. Gordon's conclusion that both parents and chddren needed to be in therapy and that the parents needed to be involved in therapy to address issues regarding their divorce. Mr. Gordon be/ica,ed/vis. Hopkins to be a good custodian of the chi/dren and had no opinion on whether ~'Ir. Hopkins could be a goo,/custodian for the children as well. In an idea/situation, Mr. Gordon wished to have Counseling occur and then determine where the chddren were best situated. The chi/riven, however, have estabhshed a life in Oregon and have negative feelings about having custody transferred to their father and returning to New York State. The reports of Mr. Gordon, as custody evaluator, and Ms. Bradshaw, as the chddren's therapist, outline that Mr. Uopkins should have joint therapy sessions with his children and that the children should have visitation with their father although that might need to be delayed until the 12 children have dealt with some of their issues from their parents' divorce. Gayle Bush was next called to testify by Mr. Hopkins. She is employed with the Sullivan County Youth Advocate Program of the Department of Social Services. She lived with Mr. Hopkins from December, 1993 until March, 1995. In December, 1994, she and Mr. Hopkins were e,~gaged to marry. He broke off their relationship in March, 1995 without providing her with a reason. Thereafter, Ms. Bush established a relationship with Patricia Hopkins, particularly because she was fond of I-Ieather and Michael. Ms. Bush and Ms. Hopkins saw each other thereafter and Ms. Bush did continue to see Heather and Michael. bls. Bush became aware that Ms. Hopkins did not bare steady employment in Sulhvan County. and had obtai,~ed a job in Oregon. She learned this approxi,nately two to three weeks before bls. Hopkins relocated to Oregon. bls. Bush testified that duriug the time she lived with Mr. Hopkins, there was no alcohol in the home a,~d there were no acts of domestic violence against her or the children. Ms. Bush testified that Ann idolized her father. Ms. Bush testified that blt. Hopkins was developing a warm loving relatiouship with John. Iiis relationship with Heather and Michael was good and she observed a loving relationship with I~Ieather and blichael. There was no intention to neglect Michael with regard to medications--on occasion he failed to come with his medication but either parent would provide it or obtain it and it was not an issue. Further, Heather did negotiate additional visitations. The children were able to visit anytime they wished and, on occasion, Heather would call to ask if she could come ~,ver. In Ms. Bush's opinion, there was a relaxed atmosphere regarding visitation. On Ms. Hopkins' case, testimony began with Patricia Hopkins. On September 5, 1996, she ,~oved t,~ ~ledford, Oregou after having accepted a position at Medford Radio!ogic Corporation. 13 During a ,~sit to Oregon at the end of July, she had interviewed with this company and had received a job offer which she did not accept until August 13. During that week, Ms. Hopkins testified that she sought to talk to Mr. Hopkins about this job but he would not respond. At one point, she testified that she told l~Ir. Hopkins she cannot find full-time employment in Sullivan County to which he replied that she could get a job at McDonalds. During any of the court proceedings or orders which concluded the proceedings, Ms. Hopkins has never been subject to a relocation restrictio,~. /Vis. Hopkins is a radiologic technologist and does mammography. She is certified and registered with the American Registry and is licensed in Oregon and New York State. She had been employed i,~ this profession for more than 20 years. Ms. Hopkins had been employed full time with Community General Hospital where her position was that of Chief Technologist and Assistant /Vla,~ager with a salary of g46,000 per year. This ended when she was laid off in December, 1995 when the hospital downsized by laying off 14 managers. Since that time aud until her current position, she worked at per .diem employme,~t although she sought full time employment so as to be able to support her family and obtain medical coverage for herself. She did not receive any offers for full-ti,ne employ,nent in the Sullivan County area prior to taking the Medford, Oregon job. There was no Arde,~ Hill Itospital job: she could not get an interview as there was no job. Her per diem cmploymexat zanged fi:o,n $13.50 to $20 per hour per day aud, frequently, she worked at most four ,lays per week and occasio,~ally a full week. In the year following her layoff she earned perhaps $25,0()0 per year. Hey eligibility for unemployment benefits terminated as of October, 1996. From the beginning of their separatlou, Ms. Hopkins had sole custody of the chiklren. This was confirmed in the 1992 agreement. Since that time, appearances in court have revolved around visitation issues; never has her ct~stody of the children been challenged. Ms. Hopkins resides in a five-bedroom home which additionally has a living room, kitchen, dining room, two bathrooms, vegetable and flower gardens and an in ground pool. She shares this home with her father, her two children, her live~in fiance, Mr. Browning, and his two children when he has visitation. Her fianc~ is a traffic engineering technician. They have plans to marry which are on hold pending this court proceeding. She shares expenses with her fianc~ whom she met during her trip to Oregon in or about July, 1995. He did not move in with her until January, 1997. Mr. Browning was formerly married. His wife has custody of their children. Mr. Hopkins raised concerns about Mr. Browning's former wife who is diagnosed with a manic-depressive disorder controlled with medication. bis. Hopkins testified that she did not take this employment to deprive Mr. Hopkins of visitation and does not oppose Mr. Hopkins having visitation with the children. Offers have been ~nade to Mr. Hopkins in an effort to resolve the current petitions which were rejected by Mr. Hopkins. Ms. Hopkins testified that at least fifty percent of the visitation which Mr. Hopkins could have had w~th the children was not exercised by him. Heather and Michael had on occasions asked to see their father more often; sometimes he was available for them and on other occasions not. Mr. l~Iopkins did not call her very often for regular visitation. Ms. Hopkins has no problem with the children ,4siting in New York State or providing Mr. Hopkins with telephone communications with the children. 15 During their life together, Ms. Hopkins indicated that Mr. Hopkins had an alcohol problem and that when he was not drinking, he was angry. Fn~ther, he would break things in the home. During the course of their relationship, Ms. Hopkins testified that she never saw Mr. Hopkins strike Heather or Michael. Since Easter, 1996, she has been concerned because she saw Ann in chnrch and was told that her father had struck her resulting in her blackened eye. On behalf of ex-wife Patricia Hopkins, sister-in-law Patricia Hopkins was called to testify. Since the party and witness have the same names and for clarity in this decision, sister-in-law Patricia Hopkins will be called that. Sister-in-Law Hopkins is married to John Hopkins' brother and has kno,,m John Hopkins for 23 years and Patricia Hopkins for 15 years. Sister-in-Law Hopkins hm,ws all of John Itopkins children; his daughter Ann has been residing with her and her family since Januan.,, 1997. \Vhen Am~ determined that she needed to move out of her hther's house, Sister-iu-Law Hopkins encouraged Ann to speak to her hther about that decision. To her knowledge, 3am could not do that. Since Am~ has resided with Sister-in-Law Hopkins, Mr. Itopkins bas made no effort to contact Ann or provide support for her nor have Sister-in-Law Hopkins and John Hopkins spoken since April, 1996. It was in April, 1996 that Ann went to church with her aunt with blackened eyes and scratches on her neck which she auributed to her father ~triking her. At that time, they met Patricia Hopkins (ex-wife) who enconraged Sister-in-Law t lopkins to file a hot line report of child abuse. Sister-in-Law Hopkins would not and did not do this. Sister-in-Law Hopkins has Inaintained contact with Patricia Hopkins since her move to Oregon. She has not remained iu comnmnication with her in anticipation of testifying in the 16 Family Court proceeding and, in fact, was reluctant to be involved in the Family Conzt proceedings. She has never seen Mr. Hopkins strike his children and, in fact, observed him to be a loving father. She testified that Mr. Hopkins did the best he is capable of doing with his children, with regard to Ann, Sister-in-Law Hopkins clearly had insight into Ann's emotional problems stemming f~om her time in Kansas with her mother and the breakup of her family. Since August, 1996, Ann confided in her aunt, cried a great deal and talked with her about her feehngs. Sister-in-Law Hopkins indicated that Ann has not stated that she loves her father but to the contrary indicates that she hates hey father. Notwithstanding her emotional problems, Ann is enrolled and at±ending S~ivan Coun~ Commuuity College and is working in two places as a cosmetologist. ~'lr. I~Iopkins was seen by Sister-in-Law Hopkins d~nking at a family wedding and saw that Susan was intoxicated. She has not seen My. Hopkins d~ing since 1992 except for this occasion. She indicated that she has noted that people are afraid to talk with Mr. Hopkins and that when he becomes angry, he has a look which causes people to back off. She has not seen him act violently but has heard him raise hi~ voice to people. Ann I%pkins, My. Hopkins' danghter, testified ~n Patvicia Hopkins case. Ann indicated that she came to live with her father when she was 14 years of age. There had been difficulties in Kansas both iu terms of her ov~ potential jnvenile delinquency and her mother's lack of parenting skills. The implication was that rather than being placed in a facility, her father came and obtained custody o~ he~. Initially, Ann resided with her father and his then girl~iend Gayle. The relationship between Ann and hey ~ather when Gayle Bush resided with them was okay. A~though Gayle and her father 17 argued, the arguments were controlled. For a short time thereafter, Ann and her father resided in a trailer which is when her brother John came to live with them. Thereafter, Mr. Hopkins met and moved into Susan Hopkins' home in or about September, 1995; they married April, i996. Per Ann's tesUmony, a few months after they moved in together they began fighting and that occurred after they had been drinking at night. She has seen Mr. Hopkins and Susan drink alcoholic beverages on more than one occasion. The consumption of alcohol by Mr. Hopkins and Susan occurred at her Uncle Kevln's wedding iu August, 1996. Ann testified that her relationship with Heather and Michael is good and that when they visited they played with the children in the household. Her father would be there when he was not working, ham testified that in January, 1997 she moved out of the home because she was unhappy and did not like the situation as it was with the drinking and fighting. She did not speak to her father about bet decision. Her father had struck her in April, 1996 although she did not move out after that incident. A Child Protective Worker did come to speak with her but he spoke with her in the presence of her father and after her father had forewarned her that he could lose his job if she indicated he had struck her. Ann has confided in her guidance counselor, Regina Wagner, only because she had been forbidden from speaking with her Aunt Pat (after Mr. Hopkins struck Ann, he forbade her to talk with her Aunt Pat). ham testified that she left her father's home in January, 1997 because she fears her father but does not know why. Alto graduated from high school on June 29, 1997 and sent her fatber an invitation but he did not attend. Ann confirmed that at age 14, prior to her father obtaining custody of her, she had faihng 18 grades in school and that there were times when her mother did not know where she was. Likewise, there were times when Ann did not know where her mother was. After her father acquired custody of her, she was enrolled in karate classes and although she so~xght to drop out, her father wo~d not permit it. She also was a member of her softball team, participated for three years in a Sullivan County beauty contest aud was a member of Team '89 at school (an organization which helps students overcome issues in school). Ann spoke with admiration of her father in a beauty pageant speech indicating that she admired her father for the encouragement he gave to her. Her father did demand that she tun~ over her entire paycheck to him and forbade her from seeing certain boys of whom he disapproved. Her father bought her a car, which was totaled in an accident. She had another accident with her father's car. Thereafter, another car apparently was purchased for her but her father could not afford to put it on the road and so it was inoperable for a length of time. Ann posits that had she been able to retain her paychecks she would have been able to afford to register and insure the vehicle. Ann ended the cross examination by her father with a statement that she used to be proud of her father but she is not proud of him now because now he fights and drinks. ANALYSIS The Court heard closing arguments and has received a voluminous law guardian report. This report recommends that custody of the children remain with their mother and that their father receive extended summer and recess visitation with the children. The law of the State of New York on relocation cases is enunciated in the case of Tropea v. Tvopea, 87 NY2d 727 (1996), in which the Court of Appeals held that each relocation case must be considered on its merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. While the respective rights of the custodial and noncnstodial parents are unquestionably significant factors that must be considered..., it is the rights and needs of the children that must be accorded the greatest weight, since they are innocent victims of their parents' decision to divorce and are the least equipped to handle the stresses of the changing family situation. (p. 739 (1996)) Further, the Court stated: ... relocation determinations are not to be made as a means of castigating one party for what the other deems personal misconduct, nor are the courts to be used in this conte~ as arbiters of the parties' respective "guilt" or "innocence". Children are not chattel, and custody and visitation decisions should be made with a view toward what best serves their interests, not what would reward or penalize a purportedly "innocent" or "blameworthy" parent. (p. 742 (1996)) The factors which Tropea has indicated should be considered include the following: 1. Impact of the move on the relauonship between the non-custodial parent and the chdd; 2. Economic necessity for the move; 3. Demands of a .~econd marriage; 4. Custodial parent's opportunity to improve his or her economic situation; 5. Feasibihty and desirability of a change in custody as an alternative to forcing the present custodial parent to remain in the locality; 6. Feasibility of a parallel move by the non-custodial parent to the custodial parent's intended destination; 7. Good faith of the parents in requesting/opposing the move; 8. Degree of attachment of the child to each parent; 9. Feasibihty of structuring visitation so as to maintain relationship between the non- custodial parent and the child; 10. Probable quality of lifestyle of the child economically, educational]y, and emotionally with and ~ithout the proposed move; 11. Impact of the move on any present hostility between the parents; and ~2. Effect of thc move on relationships with the extended family (pp. 739-741). The situation of the parties in this instance lead this court to conclude that Patricia Hopkins shordd c,mtinue to haw cnstody of the children and be permitted to relocate to Oregon. Ms. 2O )-Iopkins has been the custodial parent of these children since the parties' separation in ~992. The current situation finds her unable to obtain employment in the Sullivan County area which would support the standard of living to which she was accustomed prior to her layoff from her Community General managerial position. On the other hand, the Opportunities presented in Medford, Oregon e~hance her abilities: she has accepted full-time employment in the field in which she has worked for the last 20 years. The children continue to excel in school and have acclimated to their new environmeut. Further, the children's position during the COUrse of the litigation as advanced by the psychologists who evaluated and provided therapy to the children is that they wish to remain with their mother and that Heather, in particular, is fearful that her father would not return her to her mother. The testimony established that the ability to COmmunicate between the parties Was non- existent. It is credible that Ms. Hopkins attempted to inform/vlr. Hopkins of her need to find time employment and the potential need to relocate. She discussed this with him when she was laid oft: and again when she accepted the other job. Mr. Hopkins response was to threaten that she could not take the children or that she should obtain employment with/VIcDonalds. Although the circumstances under which/qs. Hopkins Ich for Ore o g n leave much to be desired, and, quite fi:ankly, the Court is not convinced that Ms. Hopkins did not understand the interim orders requiring her to remain in Sulhvan County pending the court proceedings, it is advantageous to her economic well- being to he able to relocate to Oregon. Mr. Hopkins acknowledged that Ms. Hopkins is a good mother. It is/vis. Hopkins who has been primarily responsible for the children and although this court is likewise conviuced that she does not wish to terminate their relationship with their father, 21 the move to Oregon, even though it prohibits Mr. Hopkins' previous alternate weekend visitation with the children, is still in the children's best interests. Mr. Hopkins, to his credit, has been there for his children. He has been a good parent to John and A,~n. Most of the individuals who testified indicated that he had a good and loving relatio,:ship with his children. This needs to be fostered even though geographic distance may not make it conducive to have more frequent visitation with the children, as he would like. What further emerged from the testimony is the anger and hostility between these two pare,~ts. /X~r. Hopkins, while conceding that he would have agreed to a visitation schedule had Ms. [--topkins approached him, now canuot see his way to making concessions because he has been wro,~ged. This same inflexibility was noted in his relationship with his daughter, Ann. He does not speak with her nor her with'him and there appears to be no way of reconciling this relationship because Mr. Itopkins will not bend. Ann stated she did not know what precipitated her move from her father's residence. She did not feel comfobtable telling him she was moving. Mr. Hopkins has made ,so effort to resurrect his relationship with his eldest daughter and, even though Ann stated that she sent him a graduation invitation, he did not attend. If nothing more, this was the perfect vehicle for them to discuss or eliminate their differences. Mr. Hopkins recognizes that Ms. Hopkins is a good mother. In the past, they had little difficulty arranging different visitation schedules although he did not always exercise the minimum amount of visitation afforded him per court order. He recogni.zes that he has had long distance relationships with gain and John and that it is workable, yet he would not distress a similar schedule for Michael and Heather. The law guardian and the attorney for Ms. Hopkins suggested in their reports and closing 22 arguments that a substance abuse evaluation should be ordered and visitation conditioned upon father's compliance with same and its recommendations. This Court will not order an alcohol evaluation. Mr. Hopkins acknowledged that he is a recovering alcoholic. He testified that he has not had a drink since 1992. This was controverted by his daughter and sister-in-law at a minimum with regard to his attendance at his brother's wedding. The police department has not censured Mr. Hopkins for alcohol abuse nor have the other individuals who testified indicated that he has a current problem with alcohol. I will trust that Mr. Hopkins is well aware of his own limitations with regard to alc&ol consumption, that his daughter has an unfavorable perception of him which will need to 1,e remedied if he wishes to continue to have a relationship with her, and that this Court will seriously restrict bis contact with blichael and Heather if the Court is made aware of any ongoing problem with alcohol consumption. Since the Court is not absolutely convinced that Ms. Hopkins relocation to Oregon occurred as innocently as she would have this Court to believe, some penalty should be imposed on her for a relocation so distant from the children's father that his ability to maintain a meaningful relationship with his children is seriously curtailed. The following is the decision of the Court: 1. Custody of the children Heather and Michael shall remain with Ms. Hopkins. She shall with as much advance notice as possible advise Mr. Hopkins of any major eveuts in the children's lives so that he has the opportunity to participate if he is able; 2. Mr. Hopkins shall have the following visitation with his children: a. Five weeks visitation with the children during the summer school recess period fi'om on or ahout July 1 (depending on air flight s&edules) until 35 days later or on or about 23 the conclusion of the first week in August (this should permit both children to retun~ to their mother's residence in sufficient time to start school and obtain their school clothing and supplies); b. Mr. Hopkins shall be entitled to have the children for one week during the Christmas recess of the children from school and for one week during the children's Spying/Easter recess from school if such is available in their school system. This is to occur beginning with the 1998 Spying recess. It is the Court's hope that the parents will be able to c~mmunicate and work out a schedule over Christmas. Since this is a difficult travel time, fle×ibility ueeds to be incorporated so that the parents can make the best possible arrangements for their two children; c. There shall be such other and different visitation as the parties may agree. Nothing shall preclude Mr. Hopkins from exercising visitation with the children in Oregon if business or his pe~onal schedule permit so long as same does not interfere with their school schedule; d. /~ls. I-Iopkins shall be responsible for the cost of transporting the children to and f~om their father's residence for the summer visitation aud shall be responsible for one-half the cost of the Christmas and one-half the cost of the Spring recess periods of time with the children. Ms. I%pkins shall be responsible for the cost of sending the children to New York State and Mr. I-Iopkius shall be responsible for retun~ing the children to Oregon; e. Either parent shall have reasonable telephone communications with the children while the children are in the other parent's care and each parent shall have a minimum of one 24 phone call per week. For the weekly phone call between the non-custodial parent and the children, on the first and third weekend of the month Ms. Hopkins shall ensure that the children call their father on Sunday evening between 7:00 and 9:00 p.m. New York time. On the second and fourth weekend of the month, Mr. Hopkins shall initiate the call on Sunday evening between 7:00 and 9:00 p.m. Oregon time. Any other calls during the week initiated by a parent or the children with the other parent shall be the cost of the parent who has initiated the call or the household from which the call originated. The children shall have reasonable access by telephone or otherwise to the other parent while in the other parent's care. Nothing contained in this paragraph shall preclude the children or parents from corresponding with the other; and f. bls. Hopkins shall continue therapy for the children with Ms. Bra&haw or another therapist and shall compel the children to attend until the therapist discharges the children. Mr. Hopkins skall participate in said tl~erapy and othencise cooperate in the children's therapy and shall enlist the assistance of a local therapist if needed when the children are at his residence. Said local therapist shall cooperate with the children's therapist in Oregon. This shall constitute decision of this Court. Counsel for respondent shall submit an order in conformance with this decision within 20 days of its date on 15 days notice to Mr. Hopkins and Ms. Rawich. l)ated: March 16, 1998 Kingston, New York 25 HON. MARIANNE O. MIZEL Judge o~ the Family Court APPEAL NOTICE NOTICE: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS FOR CONTEMPT OF COURT. PURSUANT TO SECTION I 113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST. SERVICE DATE: ~ I~ C_.. ¢~ ~ "~! t UPON: ~Petitioner '"'~by mail Respondent by mail Petitioner's Attorney by mail ""~Respondent's Attorney ~y mail · .,'~aw Guardian ~ mail __Parent/Guardian by mail DHFS Counsel by mail County Attorney by mail Other by mail Other by mail Other by mail Other by mail personal service personal service personal serv,ce personal serwce personal serwce personal service personal service personal service personal service personal service personal service personal service PLEASE BE ADVISED THAT TI-II8 DOCLndENT WA,q ENTEREDIN THE 8UU. IVANCOUNTY F~.¥ COU~T ,C~K'8 OFFICE O~ THE SEP--1B--2002 04:20 PM PATRICIA. ~ROWNIN~ 541 754 8B25 P. ~2 ~OHN HOPIC, INS IN 'ITIE COURT OF COMMON PLEA8 OF PI.~LNTLFF : CUMBERLAND COUNTY, PENNSYLV&NLA V. : 01-4~34 CIVIL ACTION LAW PATRICIA IN CUSTODY' DEFENDANT AND NOW, lrrMey. ~'gtember 1-% Z00l , upon considem~ of me amch~ Com~h~ It i~ h~rhV die,ted ~t p~e~ and th~k r0~e~tive ~u~¢,l ~cm b=fi. c~u~uc~= M. V~, ~, ~, ~c con~lm~r, f~ a P~.He~g Cus~ Conf~oe. At s~h c~f~ncc, ~ cff~ ~11 ~ made to r~olvc ~e iss~s in dispu~; if th~ ~t be ack,fishY, ~ ~fme ~d ~w the {ssu~ to be h~M ~ ~e ~ ~d to ~ into a ~ ~er. All o~ a~ five ~r o~er ~y al~ ~ ~s~t at the oo~oe. Fa~ m a~m at ~e ~e ~e ~u~ h~eby dir~ ~e p~m to f~nh any ~d aH eds~g P~t~ ~m Abn~ 8~j~ ~ll~ o~ ~d ~stody o~em to the eoncffiator ~ bourn ~or ~ sch~ h~. ~'''~ FOR ~m COUP, ~'~.~. '~ '~- :.n ~' ~e Co~ of C~mon He~ of Cum~d C~W is ~ ~ law to ~ly ~th ~e ~s~ ~li~t ofI~0. Fort~urmati~out ao~sMblc facilities ~ ~le neeom~n a~le ~ dinnbl~ ~vid~ ~ving bu~e~ heroin ~ ~, pl~ ~mt ~ o~ce. ~ ~n~tn m~ ma~ at l~ 72 ~ ~ to any ~ng ~ ~ ~f~e ~ ~u~. You aReM ~e ~h~u~ ~f~e ~ YOU StlOI~ TAKE ~IS PAP~ ~ YOUR A~EY AT ONCE. ~ YOU ~ HAVE AN ATI~R~ OR C~ ~ORD 0~, ~ ~ OR 'I~LE~O~ '15~ OF~CE SET FORTN B~W ~ F~D O~ ~ YOU C~ ~ I.F~ ~LP. CAtmberland County Bar As~istion 2 Liberty Avenue Carlisle, Peimsylvania 17013 Telephone (717) 249-3166 EXHIBIT "c" $£~--18--2802 84:21 PM PATRICIA.~ROWNIN~ JOHN HOPKINS Phintfff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA : CIVIL ACTION-LAW PATRICIA HOPKINS ~ant ORDER OF COURT AND NOW, upon consideration of ~e stmched Complsint, it is hereby that ~he pm-ties and their r~specti.¢ counsel sppear before ..... . the conciliator, st - , o~ ~e, d~y of · 2002, at .tm, for a pte-h~,~ng cu~toay conf~ At s~ c~f~ ~ ~o~ ~ ~ ~ m ~o~ ~ ~ ~ ~ute; ~ ~ ~ ~t ~ ~o~, ~ dele ~ ~,~ ~ iss~ ~ ~ c~ce ~y p~e ~un& 6r m~ of s ~~ ot ~'-=-~t o~r. By the Cour~ YOU SHOUt.n TAW THIS PAPER TO YOUR ILAWI~R AT ONCe. CUMBERS.AND COUNTY BAR ASSOC3&TION 2 LIBERTY AVRNUE CARLISLE, PA 17013 (71~) ~-49-3t~ OR (SOO) ~00~0S AMRRICANS WITH Dh~ABILITIES ACT OF 1~0 ~e ~ of C~n ~ of Cnmhe~ ~ ~ ~i~ ~ ~ m comply ~ ~ ,Am~ ~ ~fi~ A~ of 19~. For h~i~n a~ ~ b~a ~ the co~ p~a~ c~ o~ o~. M ~ ~ ~ ~de at ~ 7Z h~ p~r ~ ~ ~ng ot ~s ~ ~ corn You ~t JOHN HOPYJNS PATRICIA HOPk. tN~ Def~&nt c.,7 ;..a '.~.J COMP~ FOR CUSTODy ':~ '~" :;R :l. ; '~ ... ¢;; ' t,,:' '.~ 1. The Plaintiff is John Hopkins, re~idi~ ,t 2263 W~lnut Botzom ' ', · ..; :' :..,, j- ~C~ . . (5) children aad the subject rnlnot child, ~ fi~ Z The Defendant is Patricia Hopkins, residing at 14 Darrell Drive, Randolph, Maaaschuactts 02368. She residm with the pa~r.~' uth~ ghil~ l~mhael Hnpkio~ Heather Hopldn, 2263 Walnut Bottom Road, Carlisle, PA 15 years The e. hiM yeas born on Dec. embez 20, 1986. She is pt~enfly in the custody of John Hopkins who resides at ~-~63 Walnut Bottom RosA, Carlisle, Pem,~lvania. During the child's lifetime, she has resided with the foll~ pe~ and at the following addresses: John Hopkins Patficia Hopki.~ 282 Nevcrsink Poami Dec~nber !986_ August 1996 Pam~ 1 topirms ~ sss Slmng~took ~oad Medfotd, OR August Mttth 1997 P~ttida Hopkins 2759 Pennington Drive Med ford, OR d. I~t~:~ Hopla-, Boyl~ton Street March 1997 - June 2002- jdy 2oo2 Randolph. MA £ John Hopkins ju~ 20o2 - August 223, 20021 2263 Walnut Bottom Road Carlisle, PA August 23, 2002 - Pre. em 4. The r~l-tionship of Phintiff to the child is that of Fathct The father of the 'child is John Hopld.~ curr~tly zeslaing at ~-963 Wakmt Bottom Road, Penm~lvm~. He is ~ed. 5. The tr. htiomhip of Detena~nt m the ehlbt i~ that of Mother The mother of the ,-hild h lhu~h Hopkins currmtly tt~iding st Mssszehusetts. She is ~nt mtrfied. ;4 Damdl ~ Randolph, b. The court otdet~ that tl~.'r father, John Hopkins, rn~y have visitation with the childxen [o~ ~e 0) weeks cludng the sutumer ~ecesa as ~ as one (1) dtui~ each of the C. iaisums ~ecess and the Spsing/li~stet t'ecess. 7. Ptmnsylvanin courts have jurisdiction over rh;~ mattc~ putsmmt to the Uniform Child CusuxlyJ-rl,diction Act, 23 Pa.C.SA. § 5341 et seq. 8. A court of this C. ommon~ rosy modi~7 a cust~ly decree from snothe~ st~t~ pursuant ua ~ Pa.C.$,&. ~ 5355. 9. The Plaintiff has no information o£ s cus~ proceeding conce~nlng the child penalng in s eou~t o£ rhi., Commonwealth. 10. The Plaintiff does not'know of a person not .a party to the proceedings who has physi~l custody of the cMkl or clsims to have custody ot visitation rights With ~ m the child. 11. The best Mw. test and per,,,-,,,-nt ~ of mo child wtl be served by grmting the relief ~equested fox ~'easons including the fo~. a. The child lass only spent a total of two-m,-d4-half ~ with mothcr since May 2002 due to the 1.) Defendant moved from Oregon ~ Massachuset~ in May 2002 2.) thc ci, i_ld remaincd in Ozegoa with Mends of the C, anfily to finish school 3.) the child lived with her f ath~ from the.end of June 2002 untii thc end of July 2002 4) the child spent three (3) weeks in Atixo~ '~,ith her h~.~is~eg her tither and her step-mothee in August 20(Y2 5.) the child moved in with her father on August 25. 2002 The child h,s g psychologic~ bond with Since August 2002, the mother's contact with the child has ~'~ solely by lelephone initiated by the child; 'l'he child received f~iling grades in w. hool in Oregon for the 2001-2002 school year re~ulting in her failing the 9* grade; The child desires to reside and attend school in Penmylvania; Father has enrolled the eh~d in school at the C. axlisle H'~mh Schoo~ TI. guldau~e ~uua~ a thc Cadisle Hi0, ~chool had '~ecomnzndM the child be placed in the 9~ grade due to the child fi;liqg the 9* grade in Oregon; however, her father wan able aa petmaade and convince the guidance connso..lor to eflroll the eh/Id in the 10a grade; 'l~:e child has been tz~iving above-average grades on ,,,ater~ since the'beginning of the 2002-2003 school year, Father and step-mother require the child and hex step-siblings to complete all home~'as.%~nmeat~ immediately af~ school; SEP--19--2002 94:25 PH PRTR~CZR.BRONHIHG 541 ?~4 882~ P.06 Step-moth= ~sists the cld]d with homewor, k, it* The chikl ~ bee= involved in e wodmut pmgnun with her step-moritz ~ (3) ~ p= wee~ ~t the ~ Fa~ ~d ~mo~ Fa~ plac~ ~ chil~ on ~ ~ ~nce; Fath~ ~n~ W p~c a s~b~ ~~t ~r the child; ~e ~ fo~ow~ ~ ho~ehoM m!~, ~cl~ing a 1~ p.m. ~ ~ ~ ~, and ~fi~ ~& ho~hold &ores; ~e m~ ~ not ac~ ~ t~ ~d% ~t ~t ~ d~ng &e fi~er c~ ~ ~ ~ ~ ~t the ~s of the exis6ng o~s~dy oM~; The child will develop a better relstionship with her mother if they axe The child has had past issues with depression and feds she would be happier residing in Permsylv~nia with hex f~ther, 12, F_mch parent whose ~tal tights to the child hav~ not been t~rrniqated h~ b~en framed u parties to this action. WHEREFO~, thc Phintiff prays that This H~morable Cxmt't modify the New York court order to grant him pritnaty phy~ficml custody of their child, Heatl~- 1.121 #86914 8 South H~ovet Street, Suite 204 C~di.de, I~A 17013 (717) 249-0900 Attorney for Pilaf ~WERIFICATIOIN]' I, John Hopk/n.% hereby ve~ that the ~tcta set forth in the foregoi~ V~RII~ICATION CusiP7 Comphiflt ~te true md conv:t ~o the be~t of my ~ infonmrion ~ul bel~e£ I undent~md thst fitlse ststements herein tt~ nmte subiect m ~e pc~ties of 18 Pn.C.S. ~4904, ~,.1~,~ to uns~,,om f~lsi~cstion to ~uthodd~. vw At .a ter~ o£ the Fa~Lly Court o£ the State of New York~ held in and for the County o£ ~ulliyan, Monticello, ~ ~ork, o~ day of ~,1,, 1997. o. -against. Petitioner, 2he ~tca2~ ~tlt~on filed by Petitioner dated ~8t 20~ 1996, the ~ola~ ~[ti~ ~[1~ by PerCeiver dated 4~ 1996, violation ~[~[on f[l~ by RoS~ndent ~d August R~dent dat~ ~pt~r 9, 1996, ~d r~s~tted aa ~ded ~t[2[~ on Septet i0, 1996, ~c~ng July 28, 1997, and ~et[t~mer having ap~ [u ~rs~ and hav~g ~e~ Se, ~d bO~ndent hav~ng ap~ed In ~oon ~ b~ h~ ~Fan 8hlev[n, Esq., ~d the ah~dren having a~ed by Lay ~d[~, ~e~lle ~oh, Bsq., and the Co~t having oons~der~ the kest~n~, a~d evidence ~resented ~d hav~g r~dered a d~S[on dated ~eh 16, 1998 ~d enk~ed ~ch 17, 1998j ~B~D, that sole custody of ~he parties, ~o W~tt Beather Houk[ne dob 12/~0/~ SEP--IG--2OO2 ~4 ;4:~ PH PATRI~IA.~ROWNIN~ ac =h~e -.~: -ave an o~it~ ~o ~ .' ~Qez that the em, ~d i~ im ~e~ ~tici~te the~e~n,  n o~ ~ut ~uiy lmt ~de~-~- · ~r~ .... Au~m~ ~u~ the °on~lumAon - _ ~UAeS) Un~l 35 Z~he~ ' ~ the n~ · o~ ~e~k du~' Y ~rciee vim~tat~- ~eur t~ .... ' n much ~t ~ - - ~U~g ~" ~e ch~e=S, .~._. ~-at "a~d h-.,_ - --' ~ing ~a~ .___ - --' ~e to the ~S~ble arran~n.- An fllx~le ~ ~-- -. SEP--18--21Be,2 e4.~44 PM ~41 ?~4 88~ such visit&tion, so ~ong as such visitation does act lntertere with ~he childless, school schedule~ and it is £u~the= OBM~ID, ~hat the ltespondent shell be responsible for the cost of transporting the children Co and fron Patitioner,s residence for the sa~aer visitation; and it is £u~her ORD~I~, that the Respondent shall be responsible £or one- half of the transportation cost of the ~etitioner,s exercise of Chris~n~s visitation with the children, and one-half the transportation cost of th~ Petitioner,s exercise of Spring re~ess visitation w~th the children, said cost to be borne by Respondent for the tranaportatlon of the children to the Petitioner,s reSiden~e in New York State i and'it is further O~V~l~, that the Petitioner sba1! be responsible fo~ one- half of the transportation cost of the Petitioner,s exercise of Christmas visitation with the children, and one-half the ' transportation cost of the Petitioner,s exercise of Spring re,ess visitation with the children, said cost tO be borne by ~etitioner for the transportation of the children fro~ the Petitioner,s residence in New ~ork 8tats to the Respondent.and the ckildzen,s ho~e in ~he State of Oregon; and it is f=rther ORD~D, that both parties shall allow reasonable telephtale access between the children and the other party with a adnimma of one telephone call per weekI and it ia further ~, that on the first and thirdweekend of each month, Respondent shall ensure that the children telephone Petitioner on Sunday evening between 7=00 V.~. and 9s00 p.~. Oreg°~ ti~e~ and 'it in fuz~her ~, that on the second and fourth ~ksnd o£ each oh~en b~en 7~00 p.~, and 9~00 p.a. Oregon ~ ~d ~ ~ fu~h~ ~, ~hat ~he chilean sha~l ha~ ~asoa~le aoc~s by · elephone or o~he~tsa to the o~h~ p~ent ~en no~ ~ ~e~ ~;~; ~;~h~V~q phy$~°al cus~Y °f the ~htld °~ ~htld~en, ~d OP~D, that noth/ng contained tn this order shall preclude the Ps-ties or the children fro~ correspond~lg with the Other; and it LB fU~cher OJ~F~3, that the Respondent shall.c~t~nue counseling for children with Ms. Brsdshaworanot~er therapist and shall c~x~tM! the child or childre~ to attend unt~l such t~me as discharged by the child,s the~apist; and .it is further ORD~BBD, that the Petitioner shall Parttoipat~ in e&id aounsel~g and Otherwise cooperate and enlist the assistance of a lOcal therapist when ~he children are at his residence, if necessary; and At is further O~D, that the lOcal therapist shall c~operate with the therapist in Oregon; and it is further ORD~RRD, khat the v~olat[on, Petit[on dat~ed August Dated. ~~, 1998 ~~, N~ YOrk E N T ~ R SEP--18--2082 85:2! PH P~TR[C~.~RO~H~HG 541 ?34 $825 P. 82 take not£ce that an order'of which th D~ted~ Al~ril 14~ 1998 Attorney for Pent,toner Off/ce and Poet Off/ce Address PO ~ox 417 .Callicoon, lq~ 12723 Itt. ~oh~ aopkine PO Box 112~ ~iber~y~ NY 12754 le~lle aa~ich, ~ 9~ 945 South Falle~q, NY. 12779 SEP--19--2~2 ~5~2! PH P~TR~CZ~.~ROMNING 541 7~4 ~825 APPEAL NCrrloE ,, personal service ., , personal service __ PersOnal ~e~vlce - Pamonal service .__ perao~el servt~e · personal service JOt-IN HOPKINS Pla~tiff PATRICk& HOPKINS ]lq TH~ COURT O1~ COMMON PLEAS NO. CIVIL ACTION-LAW 14 D~£~I Dn~ 8 ~uth ~ St~t ~PA 170~3 JOHN HOPKINS, Plaintiffs Vo PATRICIA HOPKINS, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 02-4234 CIVIL TERM : IN CUSTODY PRAECIPE TO FII,E A CUSTODY DECREE OF ANOTHER JURISDICTION PURSUANT TO 23 PA. C.S.A..~5356 Pursuant to 23 Pa. C.S.A. §5356 and 23 Pa. C.S.A. §5364 of the Domestic Relations Code, relating to Uniform Child Custody Jurisdiction Act, please file of record the attached certified Order of Court, dated March 16, 1998, from the Sullivan County Court, Family Court Division, New York, attached hereto. Respectfully submitted, GRIFFIE & ASSOCIATES i~ ~tl~tas, esquire Attorney f~ Petitioner 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 STATE OF NEW YORK FAMILY COURT: COUNTY OF SULLIVAN In the Matter of a Proceeding under Article 6 of the Family Cou~ Act, WITHIN IS A TRUE ~ OF 1'HE ORiGII~ ON FILE IN 71,l~~: SULL~N/C(~UNTY FAMILY co j, JOHN HOPKINS, -against- PATRICIA HOPKINS, Petitioner, Respondent. PRESENT: HON. MARIANNE O. MIZEL, J.F.C. DECISION Docket Nos. V-2_.5...5/~56-92 JOHN HOPKINS, Petitioner, prQ LORAN SHLEVIN, ESQ., attorney for Respondent, Patricia Hopkins ISABELLE RAWICH, ESQ., Law Guardian for the minor children, Heather and Michael Hopkins *IIZEL, M. O., J.: Several petitions have been filed by these parties, two are violation peUtious, one is for ,nodification of a previous order of this court and one petition seeks to set aside a temporary order of this court and pe..it a modification of the previous order of this court. The matters were tried over several days commencing July 28, 1997. Prior to the trial date, John ! topkins had bee,, represented by Cheryl Maxim, Esq. On trial, Mr. Hopkins represented himself. Patricia Hopkins throughout has been represented by Loran Sh]evin, Esq. The children, Michael, date o[ birth November 25, 1989, and Heather, date of birth December 20, 1986, were represented by their law guardian, Isabelle Rawich, Esq. The petitions may be summarlze~l as follows: 1. Violauon petition filed by Patricia Hopkins against John Hopkins, dated August 9, 1996 seekiug a return of the children to her custody on August 9, 1996. The order to show cause signed the court coutained a provision requiring My. Hopkins to return the children forthwith to their mother; 2. Modification petition filed by John Hopkins against Patricia Hopkins dated August 20, 1996 requesting that the children's residence not be removed from New York State and that he be granted custody of the children. The order to show cause signed by the conrt contained a provision requiring Ms. Hopkins to n~,~ remove the children from New York State; 3. Violation petition filed by John Hopkins against Patricia Hopkins dated September 4, 1996 seeking immediate custody of the children in that Ms. Hopkins had left New York State with the children and he had no information as to their intended relocation address. The order to show cause signed by the court provided that Mr. Hopkins shall have temporary custody of the children and may seek law enforcement agency assistance in acquiring his children; and 4. Handwritten petition filed by Loran Shlevin, Esq. on behalf of Patricia Hopkins against John Hopkins dated September 9, 1996 and re-submit-ted as an amended petition on September 10, 1996 (when it was typewritten) seeking a stay of the temporary custody order and a modification of the previous permanent order of custody to permit Ms. Hopkins to retain custody of the children but to relocate rith the children to the State of Oregon and an agree~nent to submit to the iurisdiction of this court as to this issue. A subsequent court conference, conducted while Mr. Hopkins was en route to locate his children, resulted in a temporary order on consent allowing the children to remain in Oregon with their mother, and provided for temporary visitation ~or Mr. Hopkins in Oregon with his children. An alcohol abuse evaluation and mental health evaluation were subsequently ordered. In the interim and as the trial date approached, Mr. Hopkins terminated his relationship with Ms. Maxim who had ably represented him throughout the proceedings and, although advised of his right to counsel, represented himself on the trial of these issues. The trial of these matters occurred over several days during which Mr. Hopkins called the following to testify: John Hopkins (petitioner), John Hopkins (petitioner's son), Virginia King, Susan l--Iopkins, ?vlichael DeFrank, Richard Gordon and Gayle Bush. Ms. Hopkins, through her attorney, called the following to testify: Patricia Hopkins (respoudent), Patricia Hopkins (Mr. Hopkins' sister-in-law) and Ann Hopkins ( Mr. Hopkins' daughter from a previous relationship). The following documents were received in evidence on Mr. Hopkins' case: A letter to Patrolman Hopkins and the evaluation report made by Richard Gordon, CSW. On Ms. Hopkins' case, the following documents were received: the report of JoAnnemarie Bradshow, the children's therapist; a letter from the school guidance counselor, Regina Wagner, dated March 19, 1997, regarding Ann Hopkins and another report of the guidance counselor on behalf of Ann Hopkins dated March 24, 1997. After the trial concluded, the Court received several ~x parte communications including a letter from the principal of Mr. Hopkins' daughter Ann's school regarding letters from the school o,~ Ann HoPkins' behalf that were introduced into evidence at trial as well as a substance abuse evaluation of Mr. l~opkins. These documents were submitted after the trial had been concluded and will not be considered in rendering this decision. They were not properly introduced, they were not offered on co,,sent by opposing party's counsel or by the law guardian, nor did any of the parties or the law guardian have the opportunity to call the maker of the letter or report for cross-examination purposes. The Court will further add that the apparent reasons for which these letters or reports are sought to be introduced after fact-finding were not conclusions which weighed heavily in the Court's mind in rendering this decision. Thc Court has considered the testimony and evidence presented and renders the following decision. After hearing Ms. Hopkins' and Mr. Hopkins' versions of what occurred regarding the August 9, 1996 visitation, the Court dismissed the petition filed August 9, 1996 in the interest of justice. Both parties acknowledged that they had modified the terms of Judge Kiedaisch's order of July 22, 1996 on their own. According to the order, Mr. Hopkins was to have the children from August 1 until Tuesday morning August 6, 1996. Mr. Hopkins did not receive the children on August 1, 1996 but rather th~ children were transported to him on August 3 or 4. Ms. Hopkins agreed to extend the time to return the children, she stated, until Friday, August 9. Mr. Hopkins acknowledged that the children were to stay longer but believed time of pick-up to be Angust 10. Both parties indicated that the extension of visitation time was through negotiations with their then ten-year old daughter, Heather. The versions of what happened differ with regard to the time of pick- up. In any event, Ms. Hopkins acquired the children on Friday, August 9 with police accompaniment and after the entry of a temporary order mandating the children's return. There is ,,o puvpo.,e to be acco,nplished by pursuing this petition. The gravamen of the issues before this Court are whether Ms. I~topki~s should retain sole custody of the children especially since she intends to maintain their residence in Oregon. Finding a violation of this petition will not advance the causes of either parent. Iu fact, since both parents acknowledge that they modified the te,,,,s of the onter on their own, this Court is hard-pressed to find a violation of the terms of the order. The petition of August 9, 1996 is dismissed in the interests of justice and the court clerk shall prepare an order of dismissal based on this decision. With regard to the remaining petitions, a summary of the testimony is helpful. Mr. l-fopkins testified on his own behalf. That he is angry with the means by which his ex- wife relocated to Oregon is an understatement. Mr. Hopkins testified that he had had a good relatio,~ship with his children and that he regularly visited with them for four years. When he and his wife separated and executed a separation agreement in or about July 22, 1992, Mr. Hopkins consented to Patricia Hopkins having sole custody of the children. Initially, his visits occurred every weekend but then, in July, 1996, were modified by Judge Kiedaisch to alternate weekends on the parties' consent. Mr. Hopkins believes that this modification and a support proceeding brought by Ms. Hopkins in March, 1996 were filed with full knowledge and the plan that she and the children would be relocating to Oregon. Mr. Hopkins acknowledged that currently the parties cannot discuss anything and that although Ms. Hopkins had informed him that she had been laid off fi~om her full- time position with the local hospital, he threatened that she could not plan to remove herself ~rom the area with the childreu. Although he opined that he would have worked something out with ~,~s. Hopkius if she had discussed her situation with him, now he was unwilling to negotiate a compromise seeking this trial and the Court's decision. Mr. Hopkins could not acknowledge that this stated positio~ on his part would be harmful to the children but instead placed full blame for the current consequence of a trial on his former wife's actions. ~Ir. Hopkins outlined that he understood that Ms. Hopkins was a licensed real estate agent, a licensed insurance agent and a licensed radiologist-technician. Further, Ms. Hopkins, per his testi~nony, had received employment in Sullivan County Community General Hospital and had a pending lawsuit from which he anticipated she would make recovery. Further, he understood that Ms. Hopkia~s could have inten, iewed for employment at a Goshen Hospital or worked at Pankin insurance offices but refused. Mr. Hopkins further testified that Ms. Hopkins had been employed at both a doctor's office and at the state prison based on statements she told him. He does not believe that the relocation was necessary for her employment opportunities. Mr. Itopkins outlined in contrast that he has married and has a home with seven bedrooms 5 and seven beds. ~It is a clean well-kept house." All of the children (his wife's five children and his own four children, including Heather and Michael) have their own beds. Mr. Hopkins indicated that the children got along with his new wife, Susan, and that there has never been a question voiced about Susan Hopkins' ability to care for any of the children. Mr. Hopkins is extremely bitter that he was not consulted regarding these potential plans, that Ms. Hopkins never consulted with him regarding changing visitation to meet her need to relocate and that Ms. Hopkins le~t for Oregon state in violation of a temporary order requiring her to remain in New York State pending court determination. Had he been initially consulted, he reasoned that ~he would have made arrangements regarding visitation and probably said OK- but the way she did it is wrong? Mr. Hopkins testified that there was a continuous course of conduct between Patricia l-lopkins and her attorney to sever any ties between him and his children, yet on cross-examination, he admitted that he had not in the past been refused visitation with the children and had not sought visitation with the children since they went to Oregon, and he refused to have a two-week visitation with the children at or about the time of the cou~t proceedings. Mr. ~-Iopkins fu~her acknowledged that he needs to become closer to his children before he could regain custody and have it succeed. On cross-examination, Mr. Hopkins acknowledged that in December, 1995, Ms. Hopkins telephoned him and informed him she had been laid off from Community General Hospital. He also acknowledged that she indicated that if she couldn't find work she would look for work out of the area. His acknowledged response was that she could not leave with his children. Mr. Hopkins testified on cross-examination from the law guardian that he knew from his converation with Heather 6 on or around August 9 that Patricia Hopkins and the children were planning a move. Heather stated to him that Ms. Hopkins did not want her to tell her father where they were moving. Mr. Hopkins further indicated that he did not confront Ms. Hopkins about her plans to relocate after he learned on or about August 20 that she was selling all of hey household items at a yard sale. The last time he had visited with the children was August 9, 1996 and, at that time, he returned the children only after a court order had entered. He did not pursue any court interventions or do anything else until August 20, 1996. Mr. Hopkins revealed that he was not financially able to pay for transportation for the children from Oregon to Liberty. Mr. Hopkins on cross-examination testified that he was an alcoholic and had spent time at Conifer Park in Albany at an alcohol treatment facility, t~Ie was positively discharged from that facility on March 29, 1992 and had not had a drink since then. He acknowledged that Susan Hopkins, his current wife, occasionally drinks beer and that she may have asked Heather to bring her a can of beer. Mr. Hopkins attended his last AA meeting a few years ago. The testimony of Mr. Hopkins revealed that 'Ann and Joh~ Hopkins, Mr. Hopkins' children from his first marriage, had resided with their mother. Initi~y, Ann came to live with him and soon thereafter John also moved i~ with Mr. Hopkins. Ann Hopkins currently does not reside with him because she would not agree to follow his rules and chose instead to see her boyfriend seven days a week. As a result, Ann resides with Mr. Hopkins' brother and sister~in-law, also Patricia Hopkins, because they allow her to date seven days a week. He denied that he ever abused his daughter but acknowledged that he has no relationship with her now having last spoken with her on January 13, 1997. Notw/thstandiz~g the circumstances of how the children Came to he in Oregon, Mr. Hopkins testified that he ca//s every SUnday to speak with his ch//dren. Heather has written to him but he does not respond Since he is not a big le~er wr~ter. Mr. Hopkins acknowledged that Ms. Hopkins is a good mother except for what she did to her children with this relocation. Mr. Hopkins called John Hopkins, Jr. to testiS. John came to couv~ having completed a three-week visitation with his mother fo/lowing a twO-week visitation of his mother with him in Sullivan Count~. John has resided with his father for approximately two years. Prior to that, he visited with his tither/requently. Both of his parents have a good relationship and seem to ta/~ about visitatio~ arra,~gement~ From the time he was little until age 11, visitation with his tither included Patricia Hopkius. John did not voice any COmplaints regarding a~y of the Women with Whom his /rather has had a relationship after his parents separated--Patricla Hopkins, his tither's fOrmer girlfrie~ad Gayle Bush, a~ul his father's current wife, Susan. Susan treats him well and does homework with him as does his father. John in turn he/ps the other children with their homework. s t ackn°~iedged that taking out the garha~,~ ~- · · equires. John is s~, eeepn~ hts room cleas~, ~eemn. h;o ~._3 . . g ' r' ~ .... ~taues up and t~ing Care of the turkey. Ile does no~ feel that is too muc~/or his tither and step-mother to as~ o[him. ]o~n indicated t~at he ~ad frequent contact ~th MiChael and Heather up unt~ ~out a year contact around August, 1996. ~en asked w~at he missed, }ohn stated "T~at they are ,to[ around; they were always there and t~en they Weren't." John indicated that Heather and Michael's vela~io~sLip ~h ~heir fitter appeared to be good and that the ~sits Were good too. John is not adverse to visiting with Michael and Heather in Oregon and "would like to see everybody work this out." John continues to see his sister, Ann, even though she does not reside in the household. When she was at school, he saw .her there. Now that she has graduated, he does visit her at her boyfriend's house or at her home with their aunt and uncle. John stated that his father knew of this relatio,~ship. Virginia King was called to testify by John Hopkins. She is a neighbor whose home is across the street from Mr. Hopkins. She has never seen Mr. Hopkins drink or be violent with any of his children although Susan Hopkins on occasion might have a beer in Ms. King's presence. From her viewpoint, Mt. Hopkins' relationship with/~lichael and Heather was close: Mt. Hopkins played with them, sat with them, watched television with them and cuddled with them. Mr. Hopkins' home is immaculate and orderly. ~ls. King has not telephoned Michael or Heather in Oregon although she has asked about them. Susan Hopkins was called to testify by John Hopkins. Susan Hopkins married Mr. Hopkins on June 2, 1996 after a one-year relationship. She has five children all of whom were visiting their father in California for the month of July. Susan Hopkins testified that John Hopkins has an affectionate aml understanding relationship with all of his children: Ann, John, Heather, and Michael. There was no domestic violence in the home nor did Mr. Hopkins drink alcohol. Ms. Hopkins on occasion is left to mind all of the children in the household which totaled nine when Heather and Michael were there and Ann still resided there. The home is run on a schedule and is organized. A~ter the boys went to bed, Susan Hopkins and the remaining "girls~ would do the dinner dishes, rent movies,, and watch TV. Katie and Heathe~. and Susan would exercise together doing exercise dance tapes or did crafts (bead work) or watched TV or made popcorn. Gener~y, ~ of the children got along. Susan Hopkins indicated that Michael and Heather were always welcome in the household and that at times their visitation would be extended on consent. On August 1, 1996, they were not able to have Heather and Michael because Susan Hopkins was ill with a virus which ~ of the other children caught. Susan is aware that Michael has an asthmatic condition and that there were times when he came for visitation without his medication. At that time, a~angements would be made to get his medication. Never has Michael displayed an emergency situation when he needed his medication. Ms. Hopkins indicated that she and Mr. Hopkins on occasions have disagreements but they do not vise to the level of yelhng or screaming. She has on occasion yelled in the house but cannot recall when Mr. Hopkins has yelled although he has on occasion c~ed for John very loudly. Mr. Hopkins speaks to the children when necessary in a steru voice, yet the children are not afraid of him and have played with him, jumped on him and gener~y interacted with him. Rules are set by both of them although she has bent the rules somewhat as the occasion merited (i~¢., allowing Ann or John to stay at a relatives home later than 9 p.m.). Ms. Hopkins does not see any reason why Michael and Heather should not be with their father and believes the children have been taken unfairly from their father. Ms. Hopkins indicated that the visitation arrangements currently being exercised by her former hnsband were negotiated and agreed upon between Ms. Hopkins and her former husband with 10 inten, ention by Mr. Hopkins. Negotiations ~or visitation between Mr. Hopkins and Heather and Michael Were made by Heather with her tither. Ms. Hopkins did not believe this was a problem for Heather or Michael or Patricia or John Hopkins to have arrangements made through the children. Ms. Hopkins did not believe that Mr. Hopkins might allude to not having visitation with his children because he could not afford it; she believed they can afford to transport the children for visitation. Michael DeFrank was called to testify on behalf of Mr. Hopkins. Mr. DeFrank is Mr. · Hopkins' superior at the Liben3, Police Department. He outhned that Mr. Hopkins is a patrolman and has worked for the Liberty Pohce Department for 18 years. Initial/y, Mr. Hopkins was a juvenile officer. There have never been any alcoho] allegations or allegations of domestic violence against Mr. Hopki,s. There are several let-ters in Mr. Hopkins files including uniform violations or lack of responsibility as a senior officer. He has received decorations, ~ Several life saving awards, meritoriot,s service awards and a merit award. A request for extension of leave time was denied to My. ltopkins when he faded to return from Oregon in search of his children. Mr. Hopkins gener~y earns six weeks of vacation time per year which year runs June to June. Mr. Richard I. Gordon was called by Mr. Hopkins. Mr. Gordon was qualified as an expert in child custody evaluations. Mr. Gordon conducted the psychological evaluation of the parties and the children which repor~ has been received in evidence. Mr. Gordon was concerned that he Was not abIe to obsen,e Mr. Hopkins with the chiIdren and voiced that concern in testimony and in his report-. This was as a result of Ms. Hopkins reluctance to remove the children from schoo/in Order to return with fl~em to New York State, thus, effectively eliminating the possibility of the children being seen 11 by the psychologist with their father. Mr. Gordon highlighted that Heather expressed SOme gar o/visitation with her/ather: that she did not want to be near him and was afl:aid that her tither might take her fi:om Oregon and not return her to her mother. Michael did not express the same fear but did indicate that sometimes he did not want to be with his tither when his tither yelled at him. Both children are receiving counseling and, as a part of the evaluation, Mr. Gordon spoke with their COUnselor JoAnnemarie Bradshaw. The report of Ms. Bradshaw was to have been attached to Mr. Gordon's report It was separately introduced and received into evidence. ' Both ~,Is. Bredshaw and/qr. Gordon concluded that both parents were very angry and were imparting this to their children. Heather indicated that her parents fought a lot and that she resented both of her parents complaining about the other to her or placing her in the middle of their COntroversy. It was Mr. Gordon's conclusion that both parents and children needed to be in therapy and that the parents needed to be involved in therapy to address iSSues regarding their diVOrce. Gordon belied,ed/Vis. Hopkins to be a good custodian of the cMdren and had no opinion on whether Mr. Hopkins could be a good custodian fOr the children as well. In an ideal situation, Mr. Gordon wished to have counseling occur and then dete ine where the children were best situated. The children, however, have estabhshed a life in Oregon and have negative feelings about having custody transferred to their father and returning to New York State. The reports of Mr. Gordon, as custody evaluator, and Ms. Bradshaw, as the children's therapist, outline that Mt. Hopkins should have joint therapy sessions with his children and that the children should have visitation with their father a/though that might need to be delayed until the 12 children have dealt with some of their issues from their parents' divorce. Gayle Bush was next called to testify by Mr. Hopkins. She is employed with the Sullivan County Youth Advocate Program of the Department of Social Services. She lived with Mr. Hopkins from December, 1993 until March, 1995. In December, 1994, she and Mr. Hopkins were engaged to marry. He broke off their relationship in March, 1995 without providing her with a reason. Thereafter, Ms. Bush established a relationship with Pat~icia Hopkins, particularly because she was fond of Heather and Michael. Ms. Bush and Ms. I-topkins saw each other thereafter and Ms. Bush did continue to see I%ather and Michael. Ms. Bush became aware that Ms. Hopkins did not have steady employment in Sullivan Coun~ and had obtained a job in Oregon. She learned this a~proximately two to three weeks before Ms. Hopkins relocated to Oregon. Ms. Bush testified that during the time she lived with Mr. Hopkins, there was no alcohol in the home and there were no acts of domestic violence against her or the children. Ms. Bush testified ~bat Ann idolized her ~ather. Ms. Bush testified that Mr. I%pkins was developing a wa~ loving relationship with John. ! tis relationship with Heather and Michael was good and she obsen, ed a loving relationship with Heather and/~Iichael. There was no intention to neglect Michael with regard to medications--on occasion he fa~led to come with his medication but either parent would provide it or obtain it and it was not an issue. Further, Heather did negotiate additional visitations. The children were able to visit anytime they wished and, on occasion, Heather would call to ask if she could come over. In Ms. Bush's opinion, there was a relaxed atmosphere regarding visitation. On Ms. Hopkins' case, testimony began with Pat~icia I~Iopkins. On September 5, 1996, she moved to ~ledford, Oregon after having accepted a position at Medford Radiologic Corporation. 13 During a x~sit to Oregon at the end of July, she had intereiewed with this company and had received a job offer which she did not accept until August 13. During that week, Ms. Hopkins testified that she sought to talk to Mr. Hopkins about this job but he would not respond. At one point, she testified that she told Mr. Hopkins she cannot find full-time employment in Sullivan County to which he replied that she could get a job at McDonalds. During any of the court proceedings or orders which concluded the proceedings, Ms. Hopkins has never been subject to a relocation restriction. Ms. Hopkins is a radiologic technologist and does mammography. She is certified and registered with the Ame~can Registry and is licensed in Oregon and New York State. She had been employed i~ this profession for more than 20 years. Ms. Hopkins had been employed full time with Community General Hospital where her position was that of Chief Technologist and Assistant Manager with a salary of S46,000 per year. This ended when she was laid off in December, 1995 when the hospital downsized by laying off 14 managers. Since that time and until her current position, she worked at per diem employment although she sought full time employment so as to be able to support her family and obtain medical coverage for herself. She did not receive any offers for fidl-time employment in the Sullivan County area prior to taking the Medford, Oregon job. There was no Arden Hill I-Iospital job: she could not get an intevview as there was no job. Her per diem cmployme,~t ranged from $13.50 to $20 per hour per day and, frequently, she worked at most four clays per week and occasionally a full week. In the year following her layoff she earned perhaps $25,000 per year. Her eligibility for unemployment benefits terminated as of October, 1996. From the beginning of their separation, Ms. Hopkins ha~l sole custody of the children. This 14 was confi,~,~ed in the 1992 agreement. Since that time, appearances in court have revolved around visitation issues; never has her custody of the children been challenged. Ms. Hopkins resides in a five-bedroom home which additionally has a living room, kitchen, dining room, two bathrooms, vegetable and flower gardens and an in ground pool. She shares this home with her father, her two children, her hve-in fiance, Mr. Browning, and his two children when he has visitation. Her fianc~ is a traffic engineering technician. They have plans to marry which are on hold pending this court proceeding. She shares expenses with her fianc~ whom she met during her trip to Oregon in or about Jnly, 1995. He did not move in with her until January, 1997. Mr. Browning was formerly married. His wife has custody of their children. Mr. Hopkins raised concerns about Mr. Browning's former wife who is diagnosed with a manic-depressive disorder controlled with medication. Ms. Hopkins testified that she did not take this employment to deprive Mr. Hopkins of visitation and does not oppose Mr. Hopkins having visitation with the children. Offers have been made to Mr. Hopkins in an effort to resolve the current petitions which were rejected by Mr. Hopkins. Ms. Hopkins testified that at least fifty percent of the visitation which Mr. Hopkins could have had with the children was not exercised by him. Heather and Michael had on occasions asked to see their father more often; sometimes he was available for them and on other occasions not. Mr. Hopkins did not call her very often for regular visitation. Ms. Hopkins has no problem with the children visiting in New York State or providing Mr. Hopkins with telephone communications with the children. 15 During their life together, Ms. Hopkins indicated that Mr. Hopkins had an alcohol problem and that when he was not drinking, he was angry. Further, he would break things in the home. During the Course of their relationship, Ms. Hopkins testified that she never saw Mr. Hopkins strike Heather or Michael. Since Easter, 1996, she has been concerned because she saw Ann in church and was told that her father had struck her resulting in her blackened eye. On behalf of ex-wife Patricia Hopkins, sister-in-law Patricia Hopkins was called to testify. Since the party and witness have the same names and for clarity in this decision, sister-in-law Patricia Hopkins will be called that. Sister-in-Law Hopkins is married to John Hopkins' brother and has known John Hopkins for 23 years and Patricia Hopkins for 15 years. Sister-in-Law Hopkins knows all of Joh~ I~[opkins children; his daughter Ann has been residing with her and her family since Janua .fy, 1997. When Ann determined that she needed to move out of her father's house, Sister-iu-l.aw Hopkins encouraged Ann to speak to her father about that decision. To her knowledge, A~n could not do that. Since Ann has resided with Sister-in-Law Hopkins, Mr. l lopkins bas made no effort to co,~tact Ann or provide support for her nor have Sister-in-Law t-topkins and John Hopkins spoken since April, 1996. It was in April, 1996 that Ann went to church with her aunt with blackened eyes and scratches on her neck which she attributed to her father striking her. At that time, they met Patricia Hopkins (ex-wife) who encouraged Sister-in-Law ! lopkins to file a hot line report of child abnse. Sister-in-Law l~topkins would not and did not do this. Sister-in-I.aw I~opkins has maintained contact with Patricia Hopkins since her move to Oregon. She has not re,nained in communication with her in anticipation of testifying in the 16 Family Court proceeding and, in fact, was reluctant to he involved in the Family Cou~t proceedings. She has never seen Mr. Hopkins strike his children and, in fact, observed him to be a loving father. She testified that Mr. Hopkins did the best he is capable of doing with his children. With regard to Ann, Sister-in-Law Hopkins clearly had insight into Ann's emotional problems stemming from her time in Kansas with her mother and the breakup of her family. Since August, 1996, Ann confided in her aunt, cried a great deal and talked with her about her feelings. Sister-in-Law Hopkins indicated that Ann has not stated that she loves her father but to the contrary indicates that she hates her father. Notwithstanding her emotional problems, Ann is enrolled and attending s~livan County Community College and is working in two places as a cosmetologist. Mr. Hopkins was seeu by Sister-in-Law Hopkins &inking at a family wedding and saw that Susan was into~cated. She has not seen Mr. Hopkins drinking since 1992 except for this occasion. She indicated that she has noted that people are afraid to talk with Mr. Hopkins and that when he becomes angry, he has a look which causes people to back off. She has not seen him act violently but bas heard him raise his voice to people. Ann Hopkins, Mr. Hopkins' daughter, testified in Pat~icia Hopkins case. Ann indicated that she came to live with her father when she was 14 years of age. There had been difficulties in Kansas both in tewns of her own potential juvenile delinquency and her mother's lack of parenting skills. The implication was that rather than being placed in a facility, her father came and obtained custody of her. Initially, Ann resided with her father and his then girlfriend Gayle. The relationship between Ann and her father when Gayle Bush resided with them was okay. Although Gayle and her father 17 argued, the arguments were controlled. For a short time thereafter, Ann and her father resided in a trailer which is when her brother John came to live with them. Thereafter, Mr. Hopkins met and moved into Susan Hopkins' home in or about September, 1995; they married April, 1996. Per Ann's testimony, a few months after they moved in together they began fighting and that occurred after they had been drinking at night. She has seen Mr. Hopkins and Susan drink alcoholic beverages on more than one occasion. The consumption of alcohol by Mr. Hopkins and Susan occurred at her Uncle Kevin's wedding in August, 1996. Ann testified that her relationship with Heather and Michael is good and that when they visited they played with the children in the household. Her father would be there when he was not workiug. A~n testified that i,~ January, 1997 she moved out of the home because she was unhappy and did not like the situation as it was with the drinking and fighting. She did not speak to her father about her decision. Her father had struck her i,: April, 1996 although she did not move out after that incident. A Child Protective Worker did come to speak with her but he spoke with her in the presence of her father and after her father had forewarned her that he could lose his job if she indicated he had struck her. Ann has confided in her guidance counselor, Regina Wagner, only because she had been forbidden from speaking with her Aunt Pat (after Mr. Hopkins struck Ann, he forbade her to talk with her Aunt Pat). Ann testified that she left her father's home in January, 1997 because she fears her father but does not know why. Ann graduated from high school on June 29, 1997 and sent her father an iuvitation but he did not attend. Ann confirmed that at age 14, prior to her father obtaining custody of her, she had failing 18 grades in school and that there were times when her mother did not know where she was. Likewise, there were times when Ann did not know where her mother was. After her father acquired custody of her, she was enrolled in karate classes and although she sought to drop out, her father would not permit it. She also was a member of her softball team, participated for three years in a Sullivan County beauty contest and was a member of Team '89 at school (an organization which helps students overcome issues in school). Ann spoke with admiration of her father in a beauty pageant speech indicating that she admired her father for the encouragement he gave to her. Her father did demand that she turn over her entire paycheck to him and forbade her from seeing certain boys of whom he disapproved. I~er father bought her a car, which was totaled in an accident. She had a,~other accident with her father's car. Thereafter, another car apparently was purchased for her but her father could not afford to put it on the road aud so it was inoperable for a length of time. Ann posits that had she been able to retain her paychecks she would have been able to afford to register and insure the vehicle. Ann ended the cross examination by her father with a statement that she used to be proud of her father but she is not proud of him now because now he fights and drinks. ANALYSIS The Court heard closing arguments and has received a voluminous law guardian report. This report recommends that custody of the children remain with their mother and that their father receive extended summer aud recess visitation with the children. The law of the State of New York on relocation cases is enunciated in the case of Trovea v. Tvo?ea, 87 NY2d 727 (1996), in which the Court of Appeals held that each relocation case must be considered on its merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. While the respective rights of the custodial and noncustodial parents are unquestionably significant factors that mast be considered..., it is the rights and needs of the children that must be accorded the greatest weight, since they are innocent victims of their parents' decision to divorce and are the least equipped to handle the stresses of the changing family situation. (p. 739 (1996)) Further, the Court stated: ... relocation determinations are not to be made as a means of castigating one party for what the other deems personal misconduct, nor are the courts to be used in this context as arbiters of the parties' respective "guilt" or "innoce,~ce~. Children are not chatte~, and custody and visitation decisions should be made with a view toward what best serves their interests, not what would reward or penalize a l~nrportedly "innocent" or "blameworthy" parent. (p. 7-t2 (1996)) The factors which Tr0p~a has indicated should be considered include the following: 1. Impact of the move on the relationship between the non-custodial parent and the child; 2. Economic necessity for the move; 3. Demauds of a second marriage; 4. Custodial pareut's opportunity to improve his or her economic situation; 5. Feasibility and desirability of a change in custody as an alternative to forcing the present custodial parent to remain in the locality; 6. Feasibility of a parallel move by the non-custodial parent to the custodial parent's intended destination; 7. Good faith of the parents in requesting/opposing the move; 8. Degree of attachment of the child to each parent; 9. Feasibility of structuring visitation so as to maintain relationship between the non- custodial parent and the child; 10. Probable quality of lifestyle of the child economically, educationally, and emotionally with and without the proposed move; 11. Impact of the move on any present hostility between the parents; and 12. I~ffect o~ the move on relationships with the extended family (pp. 739-741). ]'he situation of the parties in this instance lead this court to conclude that Patricia Hopkins continue to have custody of the children and be permitted tn ~elocate to Oregon. Ms. 2O Hopkins has been the custodia/parent of these chl/dren Since the parties' separation in 1992. The current situation finds her unable to obtain employment in the Sul/ivan County area which would support the standard of living to which she Was accustomed prior to her layoff/rom her Community Genera/manageria/position. On the other hand, the Opportunities presented in Medford, Oregon e~hance her abi/ities: she has accepted/u//-time employment in the field in which she has worked for the last 20 years. The children continue to excel in school and have acclimated to their new enviroument. Further, the ch~/dren's position during the course of the litigation as advanced by the psychologists who evaluated and provided therapy to the chi/dren is that they wish to remain with their znother and that Heather, in particular, is fear/u/that her tither would not return her to her mother. The testimony established that the ability to COmmunicate between the parties was non- existent. It is credible that ~vls. Hopkins attempted to i~fonn ~vlr. Hopkins of her need to find ~ime employment and the potentia/need to relocate. She discussed this with him when she was laid off and again when she accepted the other job. Mr. Hopkins response was to threaten that she could not take the children or that she should obtain employment with McDona/ds. A/though the circumstances under which/~Is. Hopkins lefi for Oregon leave much to be desired, and, quite/rank/y, the Court is not convinced that Ms. Hopkins did not understand the interim orders requiring her to remain in ,-ullivan County pending the court proceedings, it is advantageous to her economic we//- being to be able to relocate to Oregon. Mr. Hopkins acknowledge~/that Ms. Hopkins is a good mother. It is Ms. Hopkins who has been pri~narily responsible for the children and although this court is likewise convalesced that she does not wish to terminate their relationship w/th their tither, 21 the move to Oregon, even though it prohibits Mr. Hopkins' previous alternate weekend visitation with the children, is still in the children's best interests. Mr. Hopkins, to his credit, has been there for his children. He has been a good parent to John and Ann. Most of the individuals who testified indicated that he had a good and loving relationship with his children. This needs to be fostered even though geographic distance may not make it conducive to have more frequent visitation with the children, as he would like. What further emerged from the testimony is the anger and hostility between these two parents. Mr. t~opkins, while conceding that he would have agreed to a visitation schedule had Ms. Hopkins approached him, now cannot see his way to making concessions because he has been wronged. This same inflexibility was noted in his relationship with his daughter, Ann. He does not speak with her nor her with'him and there appears to be no way of reconciling this relationship because Mr. Hopkins will not bend. Ann stated she did not know what precipitated her move from her father's residence. She did not feel comfortable telling him she was moving. Mr. Hopkins has made no effort to resurrect his relationship with his eldest daughter and, even though Ann stated that she sent him a graduation invitation, he did not attend. I~ nothing more, this was the perfect vehicle for them to discuss or eliminate their differences. Mr. Hopkins recognizes that Ms. Hopkins is a good mother. In the past, they had little difficulty arranging different visitation schedules although he did not always exercise the minimum amount of visitation afforded him per court order. He recogni.zes that he has had long distance relationships with Ann and John and that it is workable, yet he would not discuss a similar schedule for Michael and Heather. The law guardian and the attorney ~or Ms. Hopkins suggested in their reports and closing 22 arguments that a substance abuse evaluation should be ordered and visitation conditioned upon father's compliance with same and its recommendations. This Court will not order an alcohol evaluation. Mr. Hopkins acknowledged that he is a recovering alcoholic. He testified that he has not had a drink since 1992. This was controverted by his daughter and sister-in-law at a minimnm with regard to his attendance at his brother's wedding. The police department has not censured Mr. Hopkins for alcohol abuse nor have the other individuals who testified indicated that he has a current problem with alcohol. I will trust that Mr. Hopkins is well aware of his own limitations with regard to alcohol consumption, that his daughter has an unfavorable perception of him which will need to be remedied if he wishes to continue to have a relationship with her, and that this Court will seriously restrict his contact with ~lichael and Heather if the Court is made aware of any ongoing problem with alcohol consumption. Since the Court is not absolutely convinced that Ms. Hopkins relocation to Oregon occurred as innoce,~tly as she would have this Court to believe, some penalty should be imposed on her for a relocation so distant from the children's father that his ability, to maintain a meaningful relationship with his children is seriously curtailed. The following is the decision of the Court: 1. Custody of the children Heather and Michael shall remain with Ms. Hopkins. She shall with as much advance notice as possible advise Mr. I~opkins of any major events in the children's lives s,, that he has the opportunity to participate if he is able; 2. Mr. Hopkins shall have the following visitation with his children: a. Five weeks visitation with the children during the summer school recess period from on or about July 1 (depeuding on air flight schedules) until 35 days later or on or about 23 the conclusion of the ~st week in August (this should permit both children to return to their mother's residence in sufficient time to start school and obtain their school clothing and supplies); b. Mr. Hopkins shall be entitled to have the children for one week during the Christmas recess of the children from school and for one week during the children's Spring'Easter recess from school if such is available in their school system. This is to occur beginning with the 1998 Spring recess. It is the Court's hope that the parents will be able to co~nmunicate and work out a schedule over Christmas. Since this is a difficult travel time, flexibility needs to be incorporated so that the parents can make the best possible arrangements for their t~,o children; c. There shall be such other and different visitation as the parties may agree. Nothing shall preclude Mr. Hopkins from exercising visitation with the children in Oregon if business or his pewonal schedule permit so long as same does not interfere with their school ~chedule; d. /~ls. Hopkins sh~ be responsible for the cost of transporting the children to and from their father's residence for the summer visitation and shall be responsible for one-half the cost of the Christmas and one-half the cost of the Spring recess periods of time with the children. Ms. Hopkins sh~ be responsible for the cost of sending the children to New York State and Mr. Hopkins shall be responsible for retun~ing the children to Oregon; e. Either parent shall have reasonable telephone communications with the children while the children are in the other parent's cave and each parent shall have a minimum of one 24 phone call per week. For the weekly phone call between the non-custodial parent and the children, on the first and third weekend of the month Ms. Hopkins shall ensure that the children call their father on Sunday evening between 7:00 and 9:00 p.m. New York time. On the second and fourth weekend of the month, Mr. Hopkins shall initiate the call on Sunday evening between 7:00 and 9:00 p.m. Oregon time. Any other calls during the week initiated by a parent or the children with the other parent shall be the cost of the parent who has initiated the call or the household from which the call originated. The children shall have reasonable access by telephone or otherwise to the other parent while in the other parent's care. Nothing contained in this paragraph shall preclude the children or parents from corresponding with the other; and f. Ms. Hopkins shall continue therapy for the children with Ms. Bradshaw or another therapist and shall compel the children to attend until the therapist discharges the children. Mr. l'h,pkins shall participate in said tl~erapy and otherwise cooperate in the children's therapy and shall enlist the assistance of a local therapist if needed when the children are at his residence. Said local therapist shall cooperate with the children's therapist in Oregon. This shall constitute decision of this Court. Counsel for respondent shall submit an order in conformance with this decision within 20 days of its date on 15 days notice to Mr. Hopkins and Ms. Rawich. 1)ated: March 16, 1998 Kingston, New York 25 HON. MARIANNE O. MIZEL Judge of the Family Court APPEAL NOTIOE NOTICE: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS FOR CONTEMPT OF COURT, PURSUANT TO SECTION I 113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 3S DAYS FROM THE DATE OF MAILING BY THE CLERK OF OOUITT, OR :~0 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST. SERVICE DATE: UPON: ~Petitioner '~by mail Respondent by mail Petitioner's Attorney by mail "'~'Respondent's Attorney '"~by mail ~'"~aw Guardian ~y mail Parent/Guardian by mail DHFS Counsel by mail County Attorney by mail Other by Other by Other by Other by mail mail mail mail personal service personal service personal serwce personal service personal service personal service personal service personal service personal service personal service personal service personal service JOHN HOPKINS, Plaintiffs PATRICIA HOPKINS, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 02-4234 CIVIL TERM : IN CUSTODY NOTICE TO PLEAD You are hereby notified to file a written response to the within Preliminary Objections within twenty days (20) days from service hereof or a judgment may be entered against you. JOHN HOPKINS, Plaintiffs Vo PATRICIA HOPKINS, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 02-4234 CIVIL TERM : IN CUSTODY PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, Patricia Hopkins, by and through her attorney, Marylou Matas, Esquire, and Griffie & Associates, and files these Preliminary Objections to Plaintiff's Complaint for Custody and in furtherance thereof states as follows: 1. Plaintiff and Defendant are the natural parents of two minor children, namely, Heather Hopkins, born December 20, 1986, and Michael Hopkins, born November 25, 1989. 2. Plaintiff filed a Complaint for Custody on September 5, 2002, seeking primary physical custody of the minor child, Heather Hopkins. 3. Plaintiff and Defendant are subject to an Order of Court, dated May 6, 1998, from the Family Court Division of the State of New York, Sullivan County, a copy of which is attached hereto and incorporated herein by reference as Exhibit "A". 4. Said Order followed from the Order and Opinion of the Family Court Division of the State of New York, Sullivan County, dated March 16, 1998, a copy of which is attached hereto and incorporated herein by reference as Exhibit "B". 5. Defendant filed a certified copy of the Order, dated March 16, 1998, in the Court of Common Pleas of Cumberland County, Pennsylvania, on October 1, 2002, contemporaneously with a Petition to Enforce a Custody Decree of Another Jurisdiction, requesting that the Court enforce the terms of the Order and return the child to her sole physical custody. 6. Plaintiff and Defendant submitted themselves to the jurisdiction of the Family Court Division of the State of New York, Sullivan County, for purposes of custody matters. WHEREFORE, Plaintiff requests your Honorable Court dismiss Plaintiff's Complaint for Custody, for lack of subject matter jurisdiction, pursuant to Pa. R.C.P. § 1028(a)(1). PRELIMINARY OBJECTIONS PURSUANT TO PA. R.C.P. 1~1028(a}(D 7. Paragraphs 1 through 6 are incorporated herein by reference as if restated in full. 8. Defendant is awarded sole physical custody of the parties' minor children, pursuant to thc Order of Court, dated March 16, 1998. 9. Plaintiff is awarded periods of visitation, pursuant to the Order of Court, dated March 16, 1998. 10. The child at issue has resided with the Defendant, in Oregon and Massachusetts, since the entry of the aforesaid Order. 11. Defendant filed his Complaint for Custody during the exercise of a period of visitation with the child. 12. This Commonwealth is not the home state of the child. WHEREFORE, Defendant requests your Honorable Court to dismiss Plaintiff's Complaint for Custody for lack of jurisdiction, pursuant to Pa. R.C.P. § 1028(a)(1). PRELIMINARY OBJECTIONS PURSUANT TO PA. R.C.P. §1028(a)(1) 13. Paragraphs 1 through 12 are incorporated herein by reference as if restated in full. 14. The child at issue has been located in this Commonwealth for a period of approximately five weeks. 15. The child's presence in this Commonwealth originated as a period of visitation with Plaintiff, pursuant to the terms of the aforesaid Order. 16. Plaintiff has restrained the child to his physical custody and refused to return her to Defendant's sole physical custody, contrary to the terms of the aforesaid Order. 17. This Commonwealth has not been the home state of the child for six months preceding the filing of Plaintiff's Complaint for Custody. 18. The child is absent from Defendant's custody and her home state because of her retention in this Commonwealth by Plaintiff, contrary to a valid Court Order. WHEREFORE, Defendant requests your Honorable Court to dismiss Plaintiff's Complaint for Custody due to lack of jurisdiction, pursuant to Pa. R.C.P. § 1028(a)(1). 19. 20. PRELIMINARY OBJECTIONS PURSUANT TO PA. R.C.P. §1028(a)(6) Paragraphs 1 through 18 are incorporated herein by reference as if repeated in full. Defendant filed a certified copy of the Order of Court, dated March 16, 1998, from the Family Court Division of the State of New York, Sullivan County, in the Court of Common Pleas of Cumberland County, Pennsylvania, on October 1, 2002. 21. Defendant filed a Petition to Enforce a Custody Decree of Another Jurisdiction in the Court of Common Pleas of Cumberland County, Pennsylvania, on October 1, 2002, a copy of which is attached hereto and incorporated herein by reference as Exhibit "C." 22. This Honorable Court has not yet entered an Order on Defendant's Petition to Enforce a Custody Decree of Another Jurisdiction. WHEREFORE, Defendant requests your Honorable Court to dismiss Plaintiff's Complaim for Custody due to the pendency of a prior action, pursuant to Pa. R.C.P. § 1028(a)(6). Respectfully submitted, GRIFFIE & ASSOCIATES M~lo~t~s, Esqu~i/~~ Attorney fo'r-Petitioner 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 VERIFICATION I, Marylou Matas, Esquire, counsel for PATRICIA HOPKINS, hereby swear and affirm that the facts set forth in this document are tree and correct to the best of my knowledge, information, and belief. I have sufficient knowledge or information and belief as to the averments stated in these pleadings, based upon my personal knowledge and infomtation obtained from my client. This statement is made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Date: 1(5/I /09 Marylo~-l~as, Esquire At.a term of the Family Court of the State of New York~ held in and for the County of Sulliyan, at Monticello, New York, day of July, 1997. PRESENT~ HON. MARIANNE O. MIZELa JFC In the Matter of a Proceeding Under Artlcle 6 of the Family Court Act, JOHN HOPKINS, -against- Petitioner, PATRICIA HOPKINS, Respondent. This matter having.come on before the Court for trial upon the modification petition filed by Petitioner dated August 20, 1996, the violation petition filed by Petitioner dated September 1996, violatlo~ petition filed by Respondent dated August 9, 1996, petition filed by Loran Shlevin, ~sq. on behalf of Respondent dated September 9, 1996, and re-submitted aa an amended petition on September 10, 1996, ~ommencing July 28, 1997, and Petitioner having appeared in person and having proceeded Pro Se, and Respondent having appeared in person and by her attorney, Loran Shlevin, Zsq., and the children having appeared by their Law ~uard£an, Isabell~ Rawich, Esq., and the Court having considered the testimony, and evidence presented and having rendered a decision dated March 16,. 1998 and entered March 17, that ~ole custody of the parties'.~inor chtZdreB, to witt Heather Hopkins dob 1~/95/~ ~-~ ~''~ u~-- ~-= EXHIBIT"A" P~TRICIA. ~ROWNIN~ P.02 11/25/89, shall remain with the Respondentl and it is further O~DF~D, that the Respondent is to provide the Petitioner with ss much advance notice as is Possible with respect =o any major events in the lives of the children in Order that the Petitioner may have an opportunity to participate therein, if he so chooses; a~d it is further O~D~, that the Petitioner~ay have visitation with the children for five weeks during the smmer recess from school from on or about July 1st (depending on air flight schedules) until 35 days laker on or about the ~onulusion o~ the Augus.t, thus allying sufficient t~e for ~e childrens, return ~o ReS~ndent and ~or the prep~a~i~ for =he and it is f~ther Y exercise visitation With the children for one week during the Christmas recess and for one week du ' ...... , in sucfl event that said recess r occur through the childre~s, school system. Due to the pe iods ~oif~iculty in making travel arrangement, around the Chris liday, the Parties shall remain flexib- .... tmas ~u in oraer that th ~'~j~ljrrangements are ~ad. for the ohildren., Welfare, O~Z~D, there shall be Such other and further visitation as Persona! schedule ~ h~ ~o'exe~o~ee v~e~ta~on w~h ~he oAii~mn in ore9~, he ehal~ not ~ P~mO~Uded f~ ex~oising ~Ep--18--20~ ~4:~4 PM PATRICIA.~ROWNIN~ 541 7~4 8825 such vlsita=ion, so long as such visitstion does no= interfere with the childrens' school schedule; and it is further O~DERED, that the Respondent shall be responsible for the cost of transporting the children to and from Petitioner's residence for the summer visitation~ and it is ~ur~her O~DE~, that the Res~ndent shall be r~sgonslble for one- half of the transportation uost of the Petitione='s e~rciee of Chri~tma~ visitation with the chil~en, and one-hal~ the transportation cost off the petltioner'~ exercise of visitation with the children, said cost to ~ ~rne by for the transportation of the chil~en to the Petitioner's ~eeidence in New York State ~ ~d'it ie further ~E~, that the Petitioner shall ~ retponsible for o~e- half of the transportation cost o~ the pe~itioner's exercise c~istmas vi~itation wt~h the children, and one-hal~ trans~rtation co~t of the Petitioner's exercise of Sprig recess visitation with the chilaren, said eo~t t0 be ~fne for the trans~r~ation of the children Er~ the residence in N~York State to the Res~ndent.and ~e children,s home in =he State of Oregon~ and it is further O~D, that ~th ~rties shall allow reasonable access ~t~en the chil~en and the other party with a ~n~ of one telephone call ~r w~k~ and it is o~, that on the first and third~kend 0f each month, Respondent shall ensure that tbs chil~en telephone Petitioner Sunday evening bergen 7=00 p.m. ~d 9~00 p.~. Ore~n t~ and PATRICIA.~ROWHIHG O~D~E~, that on the second and fourth weekend of each month, the Petitioner shall initiate telephone contact with the children between 7:00 p.m. and 9:00 p.m. Oregon time; and it is further O~O~D, that the children shall have reasonable access by telephone or otherwise to the o=her parent when not in their care; said cost of such teleph°ne calls to be paid for by the party then having physical custody cf the child or children; and i= is further O~D~Tm~, that nothing contained in thi~ order shall preclude the parties or the children fro~correspondi~g with the other; and it is further O~D~D, that the Respondent shall continue counseling for Che children wlthMs. Bradshaw or another therapist and shall co~pel the child or children to attend until such tim~ as discharged by the child's therapist; andit is fuzther O~DE~, that the Petitioner shall participat6 in said counsel{-g and otherwise coops=ate and enlist the assistance of a local therapist when the children are at his residence, if necessary; and it is further O~D~RED, that the local therapist shall cooperate with the therapist in Oregon; and it is further O~DE~ED, that the violation petition dated AugUst 9, is ~ereby dismissed in the in~ere~ts of justice. Dated: . ,~~, 1998 ~~v~' NeW York 1996, ENTER ~0N ~'""~A~ O.- MZ~XL, Judge o~ the Family Court NOTICE 01: ENTRY SEP--15--2082 05:21 PM PATRiCIA.~ROWNIN~ 541 ?~ 8825 P.02 NOTICE OF SETTLEMENT PLEASE take notice that an order of whicA the within is a true copy will be presented for Bet=lem~nt =o ~he HOn. Marianne O. Mizel, J.F.C., one of the judgeB of the within named court, at Monticello, New York on April 29, 1998 at 9~00 A.M. Da~ed~ Apr£1 14, 1998 Yours, LORAN SHLEVIN, ESQ. Attorney for Pecitioner office and ~ost Office Address PO Box 417 .Callicoon, NY 1272~ ~. John ~opkins PO Box 1125 Liberty, NY 12754 Zsabelle Rawich, Esq. PO Box 945 South Fail,burg, NY' 12779 SEp--18--~082 05:21 PM PATRi¢IA.~ROWNIN~ 541 ?~4 8825 APPEAl. NOTIC)I[ NOTIOEI YOUR WiLLFUL FAILURE TO ORBY THI~B ORDER MAY, AFl'EH OOUNT HEARINO, RESULT IN YOUR OOMMITMINT TO dAIL FOR A TERM NOT TO IXOEED MONTHS IrON OONTEMPT OF OOUNT, PURSUANT TO SlIOTION 1 1 IS OF THE FAMILY OOURT AG'T, AN APPEAL FROM THIS ORDER MUSt' role TAKEN WITHIN :BO DATO OF REOEIPT OF THE ORDER BY APPELLANT IN OOURT, ,.tB DAY'B FROM THE DATE OFf MAILING BY THE OLERK OF C)OURT, OR ~O DAYI AFTER BE. RVIC~ BY A PANTY Oll THE i. AW GUARDIAN UPON THE AFPILJ. ANT, WHlC:tHEVI[R IS SERVICE DATE: UPON: /~ Petitioner ~Respondent Other Other ~C'-by mail personal service -.-- by mail personal service by mai] personal service ~ by mall -- persona. I service .~by mail personal service ~ by mall _._ [~ersonal service by mail ,.~_ by mail w by mall -.-- by mall by mail by mail pemonal service personal service personal service pemonal service personal service w personal service $EP--18--2082 05:22 PM PATRiCIR.~ROWNING 541 ?~4 8825 P.04 JOHN HOPKINS Plai~6ff IN THE COURT OF COMMON PI]~,AS CUMBERLAND COUNt, PENNA : v. : NO, CIVIL TERM : : CML ACTION-LAW PATKICIA HOPKINS Defendant ~RTIFICATIt OF SERVICE AND NOW, this 5~ day of September, 2002, I. K~ea W. I-Iaggerty. F~squi~ hereby certify that I did scrve a truc and correct, copy of the foregoing Ctmtody Complaint upon the Defendant by placing or cau.4ng to be placed said copy in the United State~ Mail, Certified Mail, return receipt ~equ~ted, to Defendant addresaed PaRiel, Hopkins 14 Darrell Drive Randolph, MA 02368 Attorney I.D, No. 86914 Suim 204 8 South Ha~ov~ C.~ll-4e, PA 17013 STATE OF NEW YORK FAMILY COURT: COUNTY OF SULLIVAN In the Matter of a.Proceeding under Article 6 of the Family Court Act, JOHN HOPKINS, -against- Petitioner, PATItlCIA HOPKINS, ! HERFBY CERTIFY THAT THE WITHIN IS A TRUE COPY OF THE ORtGII',4,~L ON FILE IN TI-IlIt SULLy, N/CgUNTY FAMILY ~-5i-~"OT~) CLERK OF THE DECISION Docket Nos. V-2~¢51256-92 ..,e ,!'.. '~"~; Respondent. ,. ,.~%% PRE~EN7: HON. MARIANNE O. MIZEL, J.F.C. LOI~N SHLEVIN, ESQ., attorney for Respondent, Patricia Hopkins ISABELLE ~kWICH, ESQ., Law Guardian for t~e minor cMa~en, Heather an~ Michael Hopkins MIZEL, M. O., J.: Sever~ petitions ~ave been ~ed by t~ese panics, ~o are ~olation petitions, one is for modification of a previous order o~ t~is cou~ and one petition seeks to set adde a tempora~ order of t~i~ cou~ and permit a oaig tion of tM od~ of t~is coup. T~e matters were tried over several days commencin~ July 28, 1997. Prior to t~e tfi~ aa , jok ltopkius Md b~u represented by C~e~l Minim, Esq. On trial, Mr. Hopkins ~ep~se~t~a ~imself. Patrieia Hopkins t~rou~out ~as been represented by Loran S~le~n, Esq. T~e c~fldren, Michael, date of birtb November 25, 1989, and Heather, date of birt~ December 20, 1986, were represented their law guardian, Isabelle Rawich, Esq. The petitions may be summarized as follows: 1. Violatiou petitiou filed by Patricia Hopkins against John Hopkins, dated A~gust 9, 1996 soehi~g a ~cturn of the cMdre,~ to her custody on August 9, 1996. The order to show cause signed 1,:, thc cou,-t co~'tau~ed a provision recluiring Mr. Hopkins to return the children forthwith to their EXHIBIT "B" mother; 2. Modification petition kled by John Hopkins against Patricia Hopkins dated August 20, 1996 requesting that the children's residence not be removed ~rom New York State and that he be granted custody of the children. The or'er to show cause siCned by t~e cou~ contained a pro~sion requiring Ms. Hopkins to ~0[ remove t~e children kom New York State; ~ ' , ' trion hle3 by John Hopkins against Patricia Hopkins dated September 4, ~. V~olatmnpet . , , , ~ .1 .,~ ~* L. _h-~l ewYor~State~t~ 1996 seehin~ immediate custody ok the ch~dren in mat ~*~s. nopmn~ ..... e~ N the chddren and he had no information as to their intended relocation address. The order to show canse signed by the cou~ prohded that Mr. Hopkins shah have tempOra~ custody of the ck~dren and may seek law enforcement agen~ assistance in acqui~ng his ch~dren; and 4. Hand~tten petition ~ed by Lovan S~e~n, Esq. on behalf of Patdcia Hopkins against John Hopkins dated September 9, 1996 and re-submiued as an amended petition on Septe~er 10, 1996 (when it was type~itten) seeking a stay of the tempora~ custody order and a modihcatlon o~ the prc,4ous permanent order of custody to pemit Ms. Hopkins to retain custody of the ck~dren but to relocate ,4th the chddreu to the State of Oregon and an agreement to submit to the ju~sdiction of this court as to this issue. A subsequent cou~ conference, conducted while Mr. Hopkins was en route to locate his children, resulted in a tempora~ order on consent ~oMng the ch~dren to remain in. Oregon their mother, and prodded for tempora~ ~sitation [or Mr. Hopkins in Oregon ~th his children. ~ gcohol abuse ~uation and mentg he~th ~Uation were subsequently ordered. In the inte~m and as the t~ date approached, Mr. Hopkins teminated his relationship ~th Ms. M~m who had ably represented him throughout the proceedings and, gthough ad~sed of his right to counsel, represented himsel[ on the trial of these issues. The trial of these matters occurred over several days during which Mr. Hopkins called the f,Alowing t~ itesti[y: John Hopkins (petitioner), John Hopkins (petitioner's son), Virginia King, Susan Hopkins, Mi&ad DeFrank, Richard Gordon and Gayle Bush. Ms. Hopkins, through her attovuey, called the following to testi~y: Patricia Hopkins (respondent), Patricla Hopkins (Mr. Hopkins' sister-in-laM and Ann Hopkins ( Mr. Hopkins' daughter ~om a previous relationship). The following documents were received in evidence on Mr. Hopkins' case: A letter to Patrolman Hopkins and the evaluation report made by Richard Gordon, CSW. On Ms. Hopkins' case, the following docnments were received: the report of JoAnnemarie Bradshow, the children's therapist; a letter from the school gnidance counselor, Regina Wagner, dated March 19, 1997, regarding Aa~n Hopkins and another report of the guidance counselor on behalf of Aam Hopkins dated March 24, 1997. After the trial concluded, the Court received several ~ parte_ communications including a letter from the principal of Nit. Hopkins' daughter Ann's school regarding letters ~rom the school on Ann Hopkins' behalf that were introduced into evidence at trial as well as a substance abuse evaluation of Mr. Hopkins. These documents were submitted after the trial had been concluded and wall not be considered in rendering this decision. They were not properly introduced, they were not of{ered on consent by opposing party's counsel or by the law guardian, nor did any of the parties or the law guardian have the opportunit~ to c~ the maker of t~e letter or report for cross-examination purposes. The Court ~ fu her add that the apparent reasons for which these letters or reports are sought to be introduced after ~act-finding were not conclusions which weighed heavily in the Court's mind in rendering this decision. The Court has co sid rea the testimony and evidence presented and renders the following decision. ~ter hearing Ms. Hopkins' and Mr. Hopkins' versions of what occurred regarding the August 9, 1996 v~sitation, the Court dismissed the petition ~iled August 9, 1996 in the interest of justice. l~oth parties acknowledged that they had modified the terms o~ Judge Kiedaisch's order of July 22, 1996 on their own. According to the order, Mr. Hopkins was to have the children from August 1 until Tuesday morning August 6, 1996. Mr. Hopkins did not receive the children on August 1, 1996 but rather the children were transported to him on August 3 or 4. Ms. Hopkins agreed to extend the time to return the children, she stated, until Friday, August 9. Mr. Hopkins acknowledged that the children were to stay longer but believed time of pick-up to be August 10. Both parties indicated that the extension of visitation time was through negotiations with their then ten-year old daughter, Heather. The versions of what happened differ with regard to the time of pick- up. In any event, Ms. Hopkins acquired the children on Friday, August 9 with police accompaniment and after the entry of a temporary order mandating the children's return. There is nt~ purpose to be accomplished by pursuing this petition. The gravamen o~ the issues before this Court are whether Ms. Hopkin, s should retain sole custody of the chddren especially since she intends to maintain their residence in Oregon. Fiuding a violation ot~ this petition will not advance the causes t~[ either parent. In fact, since both parents acknowledge that they modified the terms of the order on their own, this Court is hard-pressed to f/nd a violation o~ the terms of the order. The petition of August 9, 1996 is dismissed in the interests of justice and the court clerk shall prepare an order of dismissal based on this decision. \~ith regard to the remaining petitions, a summary of the testimony is helpful. Mr. Hopkins testified on his own behalf. That he is angry with the means hy which his ex- wife relocated to Oregou i~ an understatement. Mr. Hopkins testified that he had had a good relatiouship with his childreu and that he regularly visited with them for four years. ~hen he and his wife separated aud executed a separatlou agreemeut in or about July 22, 1992, Mr. Hopkins consented to Patricia Hopkins having sole custody of the children. Initially, his visits occurred every weekend but then, in July, 1996, were modified by Judge Kiedaisch to alternate weekends on the parties' consent. Mr. Hopkins believes that this modification and a support proceeding brought by Ms. Hopkins in March, 1998 were filed with full knowledge and the plan that she and the children would be relocating to Oregon. Mr. Hopkins acknowledged that currently the parties cannot discuss anything and that although Ms. Hopkins had informed him that she had been laid off from her full- timc position with the local hospital, he threatened that she could not plan to remove herself from tbc area with the chddren. Although he opined that he would bare worked something out with bls. I4opkins if she had discussed her situation with him, now be was unwilling to negotiate a compromise seeking this trial and the Court's decision. Mr. Hopkins could not acknowledge that this stated position on his part would be harm~l to the children but instead placed full blame for the current consequence o~ a trial on bis former wife's actions. Mr. Hopkins outlined that he understood that Ms. Hopkins was a licensed real estate agent, a hcensed insurance agent and a licensed radiologist-technician. Further, Ms. Hopkins, per his testimony, had received employment in Sullivan County Community General Hospital and had a pending lawsuit from which he anticipated she would make recover. Further, he understood that Ms. Hopkins could have intenaewed for employment at a Goshen Hospital or worked at Pankin insurance offices but refused. Mr. Hopkins farther testified that Ms. Hopkins had been employed at both a doctor's office and at the state prison based on statements she told him. He does not believe that the relocation was necessary for her employment opportunities. Mr. I topkins outlined in contrast that he has married and has a home with seven bedrooms and seven beds. "It is a clean well-kept house." All of the children (his wife's five children and his own four children, inclnding Heather and Michael) have their own beds. Mr. Hopkins indicated that the children got along w/th his new wife, Snsan, and that there has never been a qnesUon voiced about Susan Hopkins' ability to care for any of the children. Mr. Hopkins is extremely bitter that he was not consulted regarding these potential plans, that Ms. Hopkins never consulted with him regarding changing visitation to meet her need to relocate and that Ms. Hopkins left for Oregon state in violation of a temporary order requiring her to remain in New York State pending court determination. Had he been initially consulted, he reasoned that "he would have made arraugements rogarding xdsitation and probably said OK- but the way she did it is wrong." Mr. Hopkins testified that there was a continuous course of conduct between Patricia 14opkins and her attorney to sever any ties between him and his children, yet on cross-examination, he admitted that he had not in the past been refused visitation with the children and had not sought ,asitation with the children since they went to Oregon, and he refused to have a two-week visitation with the children at or about the time of the court proceedings. Mr. Hopkins further acknowledged that he needs to become closer to his children before he codd regain custody and have it succeed. On cross-e×aminaUon, Mr. Hopkins acknowledged that in December, 1995, Ms. Hopkins telephoned him and informed him she had been laid off f~om Community General Hospital. He also acknowledged that she indicated that if she couldn't find work she would look for work out of the area.' His acknowledged response was that she could not leave with his children. Mr. Hopkins testi[4ed on cross-examination from the law guardian that he knew from his converation with Heather on or arguncl Au~!ust 9 that Patrieia Hopkins and the ehilclren were planning a move. Heathe~ state~ to ~im t~at Ms. Hopkins ~i~ not want ~er to te~ ~er ~a~er w~ere t~ey were mo~n~. Mr. Hopkins [u~her indicae~ teat he gig not conkout Ms. Hopkins about her plans to relocate aker he learned on o~ a~out A~gust 20 that she w~s s~i~ ~11 o[ her ho~&ol3 items at a yar3 sale. The last time h~ h~d ~site3 ~th the chdar~ ~s AuCust 9, 1996 ~3, a that time, he remme~ the chfl3ren ody a[*~ ~ co~a o~&~ h~d entered. He ~i3 not pursue any cou~ intewentions or do on,king else u~tfl August 20, 1996. Mr. Hopkins reveale3 that he was not ~nancially able to pay [or tranSpo~ation lot the chil(lren from Ore,on to Libel. Mr. t-Iophins on cross-examination testihe3 that he was an alcoholic an3 had spent time at Co,~i[~ P~rh in ~Y ~t ~n ~l~ohol treatment [acdi¢. He was positively ~ischarge~ ~om that [acih~ on M~rch 29, 1992 ~a h~a not h~d ~ 3rink since th~n. H~ ~ch~o~lea~d that S~ HopCns, his current ~[e, occasion~y a~s beer an3 that she may have asked Hea~er to brine her a cau o[ beer. Mr. Hopkins ~a~&a his h~t ~ meetin¢ a Jew years aSo. The testimony o[ N1r. Hopkins revere3 that '~n an~ Jo~ Hopkins, Mr. Hopkins' chdaren [rom his [4rst ma~a~e, ha~ resi3e~ Mth their mother. Initi~y, ~n came ~o live Mt[ ~m an3 soon therea[ter Joh~ ~o ~a h~ ~th Mr. Hopkins. ~n Hopkins currently ~oes not reside ~th him be~ ~h~ ~o~13 ~ot ~ to ~ollo~ his roles an~ cho% instead to see her boy~en3 seven 3ays a week. M a resdt, ~m resides ~th Mr. Hopkins' brother an3 sister-in-law, also Patficia Hopkins, because they allow her to &re seven 3ays a ~eek. H~ 3enied that he ever abuse3 his &u~hter but ~&no~l~d¢~a that he has no relationship ~th her now ha~n¢ last spoken ~th her on Janua~ 13, 1997. 7 Notwithstanding the drcumstances of how the children came to he in Ore,on, Mr. Hopkins testified that he c~s every Sunday to speak w~th his children. Heather has written to him hut he does not respond since he is not a big letter wr~ter. Mr. Hopkins acknowledged that Ms. Hopkins is a good mother except for what she did to her children with this relocation. Mr. Hopkins called John Hopkins, Jr. to testify. John came to cou~ having completed a three-week visitation with his mother following a two-week visitation of his mother with him in Sullivan County. John has resided with his father for approximately two years. Prior to that, he visited with his father frequendy. Both of his parents have a good relationship and seem to talk about visitation arrangements. From the time be was little until age 11, visitation with his father included Patricia Hopkins. John did not voice any complaints regardin~ any of the women with whom his father has had a relationship afb. er his parents separated--Patricia Hopkins, his father's former ¢irlfriend Gayle Bush, and his father's ~m'rent wife, Susan. Susan treats him well and does homework with him as does his father. John in turn helps the other chdd~en with their homework. fie has never seen his father drink nor has his father ever been abusive to him. He acknoMedged that bis father is a strict discipIinarian.-his father "expects you to do what he requires." John is responsible for tahin~ out the earbage, keepin~ his room clean, keeping his Rrades up and t~in~ care of the turkey. Ite does not feel that is too much for his father and step-mother to ask of him. Jobt~ indicated that he had frequent contact with Michael and Heather up until about a year before, i.e., last contact around August, 1996. 27hen asked what he missed, John stated "That they are n~t around; they were always there and then they weren't." Johu indicated that Heather and Michael's relationship with their father appeared to be good and that the visits were good too. John not actverse to visiting with Michael and Heather in Oregon and "would like to see everyhoc[y work this out." John continues to see his sister, Ann, even though she does not resi(te in the household. x'Che,, she ,,as at sehoot, he saw.her there. Now that she has graduated, he does visit her at her boyf, r/end's house or at her home with their aunt and uncle. John stated that his father knew of this relationship. Virginia King was called to testify by John Hopkins. She is a neighbor whose home is across the street from Mr. I-Iopkins. She has never seen Mr. Hopkins drink or be violent with any of his ohtld~e,~ although Susa~ Hopkins on occasion mip, ht have a beer in Ms. King's presence. From her viewpoint, Mr.I-Iopkins' relationship with Michael and Heather was close: Mt.Hopkins played with them, sat with them, watched television with them and cuddled with them. Mr. Hopkins' home is immaculate and or&dy. Ms. King has not telephoned Michael or Heather in Oregon although she has asked about them. Susan Hopkins was called to testify by John Hopkins. Susan t-Iopkins married Mr. Hopkins on June 2, 1996 after a one-year relationship. She has five chddren all of whom ~,ere visiting their father in California for the month of July. Susan Hopkins testihed that John Hopkins has an affectionate and understanding relationship with all of his children: Ann, John, Heather, and ~Miehael. 'rh e was no ~lomestio viole~e in the home nor did Mr. Hopkins drink alcohol. Ms. lqopkins on occasion is le~t to mind all of the children in the household which totaled nine when Heather and Michael were there and/knn still resided there. The home is run on a schedule and is organized. AJ'ter the boys went to bed, S~s~n Hopkins and the remainin~ "girls" would do the dinner 9 &shes, rent movies, anti watch TV. Katie anti Heathe~.ancl Susan woul~ exercise together doing exercise dance tapes or rhrl crakS 0edd work') or watched TV or marie popcorn. Generally, all of the &ilaren Sot Aorta. Susan Hopkins indicated that Michael and Heather were always welcome in tlxe household and that at times their visitation would be e×*enaea on consent. On August 1, 1996, they were not A,le to have I4eather and blichael ]0eeause Susan Hopkins was ill with a virus which all of the other children caught. Susan is aware that Michael has an asthmatic condition and that there were times when he came ~or visitation without his mechcation. }It that time, arrangements would be made to ~et his mediCation. Neve~ has Michael displayed an emergency situation when he needed his meclication. Ms. Hopkins inchcated that she and Mr. Hopkins on occasions have disagreements but they do not rise to the l~el o~ ye~in~ or screaming. She has on occasion ye~e~ in the house ~ut cannot r~A1 d~e~ M~. Hopkins has ye~ea ~thou~h he has on occasion called ~or John ~e~ loudly. Mr. Hopkins ~pe&s to the Children when neces~aW in a stem voice, yet ~e chda~n a~e =or ~=ia o[ h~ ~nd h=~e phyed ~th him, i=mp~d o= him and CeneraHy interacted ~th him. Rules are set by both of them Jthough sM h=, gent the roles some&at as the occasion me~te3 ~, ~o~n¢ ~ or JoM to stay at a relatives home later than 9 p.m.). Ms. Hopkins does not see any reason why Mi&del and Heaher shoda not ~e ~th t~eir [at~er and believes the Chdaren have been taken un[airly tom their lather. Ms. Hopkins intlicated that the visitation arrangements current[y bein~ exercised by her former husl~ant[ were ne¢otiate~t and aCreed upon between Ms. Hopkins and her ~ormer husband with 10 i~tervention by Mr. Hopkins. Negotiations for visitation between Mr. Hopkins and Heather and Michael were made by Heather with her father. Ms. Hopkins did not believe this was a problem for Heather or Michael or Pa~ricia or John Hopkins to have arrangements made through the children. Ms. Hopkins did not believe that Mr. Hopkins might allude to not hav~ng visitation with his children because he could not afford it; she believed they can afford to transport the children for visitation. Michael DeFrank was called to testify on behalf of Mr. Hopkins. Mr. DeFrank is Mr. · Hopkins' superior at the L~er~y Police Department. He outhned that Mr. Hopkins is a patrolman and has worked for the k~er~ Police Department for 18 years. Initially, Mr. Hopkins wa~ a juvenile o[Jicer. There have never been any alcohol allegations or allegations of domestic violence against Mr. Hopkins. There are several letters in Mr. Hopkins files including uniform violations or lack of responsibility as a senior officer. He has received decorations, i.e., several life saving awards, meritorious service awards and a merit award. A request for extension of leave time was denied to Mr. Hopkins when be faded to return from Oregon in search of his chddren. Mr. Hopkins generally earns slx weeks of vacation time per year which year runs June to June. Mr. Richard I. Gordon was called by Mr. Hopkins. Mr. Gordon was qualified as an expert in child custody evalnations. Mr. Gordon conducted the psychological evaluation of the parties and the chddren which report bas been received in evidence. Mr. Gordon was concerned that he was not able to ol, sevve M r. Hopkins with the children and voiced that conceru in testimony and in his report. This was as a result of Ms. Hopkins reluctance to remove the children from school in order to return ~th them to New York State, thus, effectively eliminating the possibility of the children being seen 11 by the psychologist with their father. Mr. Gordon highlighted that Heather expressed some fear of visitation with her father: that she did not want to be near him and was afraid that her father might take her from Oregon and not vet~m her to her mother. Michael did not express the same fear but did indicate that Sometimes he did not want to be with his father when his father yelled at him. Both children are receiving counseling and, as a part of the evaluation, Mr. Gordon spoke with their counselor JoA~nemarle Bradshaw. The report of Ms. Bradshaw was to have been attached to Mr. Gordon's repor*. It was separately introduced and received into evidence. Both bls. Bradshaw and Mr. Gordon concluded that both parents were very ang~ and were i,nparting this to their children. I-Ieather indicated that hey parents fonght a lot and that she resented bt,th of her parents complaining about the other to her or placing her in the middle of thei.- c~ntrovevsy. It was Mr. Gordon's conclusion that both parents and cl41dren needed to be in therapy and that tbe parents needed to be involved in therapy to address issues regarding their divorce. Mr. Gordon believed Ms. I-Iopkins to be a good custodian of the children and had no opinion on whether Mr. Hopkins could be a good custodian for the children as well. In an ideal situation, blt. Gordon wished to have counseling occur and then determine where the children were best situated. The children, however, have established a life in Oregon and have negative feelings about having custody transferred to their father and returning to New York State. The reports of Mr. Gordon, as custody evaluator, and Ms. Bradshaw, as the children's therapist, outline th.,t Mr. Hopklns should have joint therapy sessions with his children and that the children should have visitation with their father although that might need to he delayed until the 12 children have dealt with some of their issues from their parents' divorce. Gayle Bush was next called to testify by Mr. Hopkins. She is employed with the Sullivan County Youth Advocate Program of the Department of Social Services. She lived with Mr. Hopkins f~com December, 1993 untd March, 1995. In December, 1994, she and Mr. Hopkins were engaged to marry. He broke oX their relationship in March, 1995 without providing her with a reason. Thereaker, bis. Bush established a relationship with Patricia Hopkins, particularly because she was fond of Heather and Michael. Ms. Bush and Ms. Hopkins saw each other thereafter and Ms. Bush dkt continue to see Heather and Michael. bis. Bush became aware that Ms. Hopkins did not i~ave steady employment in sulhvan County and had obtained a job in Oregon. she learned this approximately two to three weeks before Ms. Hopkins relocated to Oregon. bls. Bush testified that during the time she lived with bit. Iiopkins, there was no alcohol in the home and d~ere were no acts of domestic violence agaiust her or the chdd:en. Ms. Bush testified float Ann idolized her father. Ms. B~sh testified that Mr. Hopkins was developing a warm loving relatiouship with John. }tis relationship with Heather and Michael was good and she observed a loving relationship with Heather and blichael. There was no intention to neglect Michael with regard to medications--on occasion he failed to come with his medication but either parent would provide it or ohtaiu it anti it was not an issue. Further, Heather did negotiate addiUonal visitations. The children were able to visit anytime they wished and, on occasion, Heather would call to ask if she c,,uld come over. In Ms. Bush's opinion, there was a relaxed atmosphere regarding visitation. On Ms. l-lopkins' case, testimony began with Patrlcia Hopkins. On Septe~nber 5, 1996, she moved to Medford, Oregon al~ier having accepted a position at Medford Radiologic Corporation. 13 Durin~ a visit to Oregon at the end of July, &e had interviewed with this company and had received a jo}0 offer which she did not accept until August 15. During that week, Ms. Hopkins testified tt~at she sought to talk to Mr. Hopkins about this jo]~ but he would not respond. At one point, she testified that she told blt. Hopkins she cannot find full-time employment in Sulhvan County to which he replied that she could Cet a j& at McDonalds. Durin~ any of the court proceedings or orders which concluded the proceedings, Ms. Hopkins has never }seen subject to a relocation restriction. Ms. Hopkins is a radiologic techuologist and does mammography. She is certified and registered with the American Registry and is hcensed in Ore~on and New York State. She had keen employed i~ this profession for more than 20 years. Ms. Hopkins had }seen employed full time with Com,nunity General Hospital where her position was that of Chief Technologist and Assistant Manager with a salary of $46,000 per year. This ended when she was laid of-f in Decem}ser, 1995 M~en the hospital downslzed }sy laying og 14 mauagers. Since that time and untd her current position, she worked at per diem employment although she sought M1 time employment so as to }se a}sle to support her family and obtain medical coverage for herself. She did not receive any offers for full-time employment in the Sullivan County area prior to tal~ing the Medford, Ovegon i&. There was no Arrlen Hill Hospital job: she could not get an interview as there was no job. Her per diem employment ranged from $13.50 to $20 per hour per day and, frequently, she worked at most four days per week and occasionally a full week. In the year follo ang her layoff she earned perhaps $25,000 per year. Her ehgihihty for unemployment benefits terminated as of October, 1996. From the ~eginning of their separation, Ms. Hopkins had sole custody of the cMdren. This 14 ~S. Hopkins resides in a [4~ve-bedroom home which additionally has a livin~ room, kitchen, d;nin~ room, two bathrooms, veaet~le and [lower ~a~den~ and a~ in ~round pool. Sh~ shares ~his home with her lather, her ~o ch~]dren, her bye-in ~anc~, ~r. Browning, and his ~vo chilclren when he has visitation. Her fianc~ is a tra~c engineering technician. They ]nave plans to marry whic]n are on hold vending this court proceeding- She shares expenses with her ~iance who~ she met during her trip to ©,-egon in or about July, 1995. He did not move in with her until January, 1997. Mr. Browning was ~ormerly married. His wite bas custody o[ their children. Mr. Hopkins raisecl concen~s about Mr. BrowninS's [ormer wife who is diagnosed with a manic-depressive disorder controlled with medication. bis. ltopkins testified that she did not take this employment to deprive Mr. Hopkins of visitation and does not oppose Mr. Hopkins havin~ visitation with the children. O[ers have been made to Mr. Hopkins in an egort to resolve the current petitions which were rejected by Mr. Hopkins. Ms. Hopkins testi[ied that at least fifty percent o[ the visitation which Mr. Hopkins could have had with d~e children was not exercised by [tim. Heather and Michael had on occasions asked to see their (ather more o~ten; sometimes he was available for them and on other occasions not. Mr. 14opkins did not cal] her very o~ten ~or regular visitation. Ms. Hopkins has no problem with the children xdsiting in New York State or providing Mr. Hopkins with telephone communications with the children. 15 During their life together, Ms. Hopkins indicated ~.hat Mr. Hopkins had an alcohol problem a~d that ~h~n h~ ~ not drlnhi~g, he was an~. FuCker, he ~o~13 L~h ~hinSs in the home. Durh~ the course o[ their relatlons~ip, Ms. Hopkins te~ti~a th~ ~h~ never saw ~r. Hopkins str~e tqe~the~ or Michael. Since Haster, 1996, sh~ .nd w~s told that h~r father had struck ~er resulting in her glachened eye. On t~eh~lf of ex-~fe Patricia Hopkins, sister-in-law Patricia Hopkins was ~led to testiS. Since the pa~ and ~tness have the same names and for clari¢ in this decision, sister-in-law Patficia Hopkins ~l ge c~led that. Sister-in-Law Hop~ns is married to John Hopkins' hrothe~ and has hno~ John }-Iophins for 23 years an3 Patricia Hopkins ~or 15 years. Sister-in-kaw Hopkins huows all of ]ohn Hopkins chddren; his daughter ~m has been residing ~th her and her ~amdy since Janua,, 1997. When ~m &temxined that she needed to mo~e out of her father's house, Sister-iu-Law Hophius encouraged Ann to speak to her father about that decision. To her hnoMed,e, t~n could not do that. Since ~m has resided Mth Sister-in-Law Hopkins, Mr. Ilophins has made no effort to contact ~n or prohde suppo~ for her nor have Sister-in-kaw Hopkins and John I-Iophins spoken since Aped, 1996. It was in Aprd, 1996 that ~n went to &u~& ~th he~ a~nt ~th l~l~ch~n~3 ~y~s ~d scratches on her neck which she augured to her fathe~ strihiu, her. At that time, they met Patricia Hopkins (ex-Mfe) who encourage3 Sister-in-Law Sister-in-Law I-{ophins ~o~ld ~ot ~d did not do 1 {ophins to file a hot hne report o~' child ab~se. this. Sister-in-Law I4opkins has maintained contact with Patricia Hopkins since her move to Oregon. She has not r~malned in communicaUon with her in anticipaUon of testifying in the 16 Family Court proceedin~ ariel, hx fact, was reluctant to he invobed in the Fatuity Court proceedings. She has never seen Mr. Hopkins str~e ~is ch~dren an& in ~act, oh~d ~im to be a lo~n~ lather. ~m, Sister-in-Law ttopkins cleady h~3 insiCht into Mm's emotional problems stemmin¢ [zom her time in Kansas ~th her mother and the b~e~up o[ her ~amdy. Since August, 1996, ~n con~de~ in her aunt, cried a ,rear ~eal an3 t~lk~d ~th h~ abo~t her feelingS. Sister-in-Law Hopkins indicated that ~m has not stated that she loves her lather but to the contra* ingicates that see hates her father. No~th~t~3i,~ h~ emotion~ problems, ~m is en~oged ~nd ~t*endin~ S~i~an Coupe Community ColleCe and is working in two places as a cosmetolo¢ist- Mr. Hopbins was seen by Sister-in-Law Hopkins 3fit~in~ at a [amily aain¢ s~ that Susan was info,cared. She has not seen Mr. HopCns a~ sh, ce 1992 except ~or ~s occasion. She indicated that she has noted t~at people are akaid to t~ ~th Mr. Hopkins and that When he becomes an~,, h~ has a look ~hich causes people to bach o¢. 5he has not seen him ad ~olently b~t has heard him raise his voice to people. j~m Hopkins, Mr. Hop~ns' test~e3 in Patficia Hopkins case. ~m indicaed fha she came to hve ~th Cer lather when she was 14 years of aCe. There hal keen i~ K~ both in terms o[ her o~,~ potential i~enil~ delinquency and her mother's lack o[ parentin~ skis. The implication was that rather than heine pkc~a i~ ~ [acdi¢, her lather came and obtained custody of her. Initially, kmn residett with her lather and his then ¢irl[riend Oayle. The relationship between Ann and her lather when Gayle Bush resided with them was okay. Although Gayle and her ~'ather 17 a trailer which is when her brother John came to live with them. Thereafter, Mr. Hopkins met and moved into Susan Hopkins' home in or about September, 1995; they married April, i996. Per Ann's testimony, a few months after they moved in together they began fighting and that occurred after they had been drixd~ing at night. She has seen Mr. Hopkins and Susan dfin~ alcoholic The consumption of alcohol hy Mr. Hopkins and Susan ~everages on more than one occasion. occurred at her Uncle Kevin's wedding iu August, 1996. Ann testified that her relationship with Heather and Michael is good and that when they visited they played ~th the children in the household. Her lather would be there when he was not working. 2~m testified that in Janua,, 1997 she moved out of the home ~ecause she was u~appy and did not hhe the situation as it was ~th the ~fiuhin¢ an3 hghtin~. She did not speak to her lather about her decision, kler lather had struck her in April, 1996 Mthoush she 3i3 not move out a[er that incideut. A Chd3 Protective Worker di~ come to speak with her ~ut he spoke Mth her in thc presence of her fathe~ and a~er her father had forewarned her that he could lose his job if she iudicated he had struck her. Ann has confided in her guidance counselor, Regina Wagner, only because she had been forbidden from speaking with her Aunt Pat {after Mr. Hopkins stn;ck Ann, he forbade her to talk with her Aunt Pat). Ann testihed that she left her father's home in January, 1997 because she fears her father M,t does not know why. Ann graduated from high school on June 29, 1997 and sent her father an invitatkm but he did not attend. Ann conhrmed that at age 14, prior to her father obtaining custody of her, she had failing 18 ~,radeS ill schOOl and tlnat tllere were times when her mother did not know where sl~e was. Likewise, there were times when Ann aid ~ot ~no~ ~h~ h~ mot~ ~. ~ ~ f~t~ acquired custody permit it. She also was a member o~ her so~b~ team, p~ieipatea fo~ thre~ y~ars County beaut7 contest dud was a member o[ Team '89 at school (an organization w~ich ~elps ~t~a~t~ o,,~o~ i~ i~ ~ool). ~n spoke ~th admiration of ~er (ather in a beau~ pageant speec~ in~icatin~ that she ~ami~ea he~ f~th~ ~o~ the ~o~=~e~t h~ g~ to h~r. H~ d~m~nd that she turn o~e~ bet entire paycheck' to elm and forbade ncr from seein~ ce~ain boys ~hom he 3isappro~efl. Her father bought her a car, which was totaled in an accident. She anod~er accident .4th h~ [~ther's car. Tt~ereake~, another ca~ app~e~tly ~as purchased [o~ her hut b~ f~th~ co.la ~ot to put it on the road and so it was inoperable lot a l~¢th o[ time. ~n posits that b~a ~h~ b~,, ~l,i~ to retain her paychecks she ~o~ld h~ ge~n ~bl~ to and insure the vehicle. ~n the cross examination by her lather ~th a statement ~a she used to k p~o~a of b~ ~th~ l~ut she is not proud o[ him no~ because now ke g~hts ANALYSIS T~e Cou~ heard closin~ arBuments and ~as receive~ a voluminous law ~uardian repo~. repo~ recommends that ~=~toay o[ the chddren ~e~a~ ~th t~eir mother and that their ~ather ~i~ ~t~d~d s=~r ~na ~ec~s ~sitation ~th t~e c~ddren- Th~ law o[ the State o[ New York on relocation cases is enunciated in the case o[ T~opea v. T~o~, 87 NY23 727 (1996), in which t~e Co~ o~ kppeals Mid that eac~ relocation case must ~e ¢ou,ia~a o~ its merits ~t~ due consideration 19 o[ all the relevant [acts and circumstances and with preclominant emphasis hein~ placed on what outcome is most hhely to serve the best interests of the chikl. While the respective rights of the custodial and noncustodia~ parents are unquestionably signi[icant factors that must ]~e considered .... it is the rights and needs o[ the children that must be accordecl the greatest weihht, since they are innocent victims o[ their parents' c~ecision to clivorce and are the least equipped to bangle the stresses of the ch~n~in~ famdy situation. (p. 739 (1996)) Furtlner, ttxe Court statetl: ... relocati~m cletenninations are not to be ma/lc as a means of castigating one party for what the other d~ms personal misconduct, nor are the to be user1 in this coute~ as arbiters o[ the panics' respective "gu~t" or - e" Cl~ilrlren are not chattel, and custody and xdsitation decisions should be made ~th a ~ew toward what best sen,es their interests, not what woul~t rewart[ or penalize a purportedly "innocent" or "blamewo~hy" parent. (p. 742 (19963) The factors which ~ has ingicatea shOUla be consiaered include the ~o~owin¢: 1. Impact of the move on the relationship between the non-custotial parent and the chdd; 2. l!conomic necessity for the move; 3. Demamts o[ a secon~ marriage; 4. Custodial parent's opportunity to improve his or her economic situation; 5. Feasibilik/and desir~fli~ o[ a change in custoay as an ~ternative to iorcing the present custodial parent to remain in t~e locality; 6. Feasibility o[ a para'el move by the non-custotial parent to the custOdi~ parent's intemte~ destination; 7. Goorl [alth o[ the parents in requestin¢/opposin~ the move; 8. Degree of attachment o[ the child to each parent; 9. Feasibility o( stmctufin¢ ~sitation so as to maintain relationshlp be~een the non- custodial parent and the 10. Probable qu~li¢ o[ li[es~le of the &ild ecouomically, educationa[ly, and emotionally ~th aud Without the proposed move; 11. Impact o[ the move on any present hostfli¢ between the parents; 12. Ef[ect o[ the move on relationships ~th t~e family (pp. 739-741). The situation of the parties in this instance l~d this cou~ to ~oucl~& that Paficia Hopkins Ms. continue to l~ave custody o[ the chilttren and be permitted to relocate to Ore¢on. 2O Hopkins has been the custodial parent of these children since the parties' separation in 1992. The current situation finds her unable to obtain employment in the Sullivan County area which would support the standard of living to which she was accustomed prior to her layoff from her Community General managerial position. On the other hand, the opportunities presented in Medford, Oregon enhance her abilities: she has accepted full-time employment in the field in which she has worked for the last 20 years. The children conUnue to excel in school and have acclimated to their new environment. Further, the children's position du~ing the course of the litigation as advanced by the psychologists who evaluated and provided therapy to the children is that they wish to remain with their mother and that Heather, in particular, is fearful that her father would not re~rn her to her mother. The testimony estahhshed that the ability to communicate between the parties was non- existent. It is credd, le that/vis. Hopkins attempted to inform /vlr. }-Iopkins of her need to find full_ time employment and the potential need to relocate. She discussed this with him when she was laid off and again when she accepted the other iol,. ~Vlr. Hopkins response was to threaten that she could not take the children or that she should obtain employment with McDonalds. Although the circumstances under which bis. Hopkins le~t for Oregon leave much to be desired, and, quite frankly, the Court is not convinced that Ms. Hopkins did not understand the interim orders requiring her to remain in Snlhvan County pending the court proceedings, it is advantageous to her economic well- beiug to he able to relocate to Oregon. Mr. Hopkins acknowledged that Ms. Hopkins is a good mother. It is /VIs. Hopkins who has been primarily responsible for the children and although this cm~rt is likewise convinced that she does not wish to terminate their relationship with their father, 21 the move to Oregon, even though it prohibits Mr. Hopkins' previous alternate weekend visitation vath the children, is still in the children's best interests. Mr. Hopkins, to his credit, has been there for his children. He has been a good parent to John and Am~. Most of the individuals who testihed indicated that he had a good and lo~n~ relationship ~th his children. This needs to be fostered even though geographic distance may not make it conducive to have more frequent ~sitation ~th the chddven, a~ he wonld like. What h~her emerged from the testimony is the anger and hostdi¢ be~een these two parents. Mr. Hopkins, while conceding that he would have agreed to a visitation schedule had Ms. l-topkin~ approached him, now cannot see his way to making concessions because he has been wronged. This same inflexil~dity was noted in his relationship ~th his daughter, Mm. He does not speak ~th her nor her ,ark-him and there appears to ge no way of reconciling this relauonship because Mr. Hopkins ~1 not bend. ~m stated she did not know what precipitated her move from her father's residence. She did not feel comfo~able telling him she was moving. Mr. Hopkins has made no e[ort to resurrect his relationship ~th his ddest daughter and, ~en though ~ stated that she sent him a graduation in,ration, he did not auend. If nothing move, this was the pe~ect vehicle for them to discuss or eliminate their di[~erences. Mr. Hopkins recognizes that Ms. Hopkins is a good mother. In the past, they had h~le diffic~l¢ arranging different ~sitation schedules although he did not always exercise the minimum amount o~ ~sitation a~orded him per cou~ order. He recognizes that he has had long distance rdationships ~th ~m and John and Cat it is worha~le~ yet he ~o,ld not discuss a similar schedule for Michael and Heather. The law g~avdian and the attorney ~or Ms. Hopkins suggested in their repo~s and closin~ 22 ar~m0nts that a suhstauee abuse evaluation should be ordered and vis~tation conditioned ~pon father's compliance with same and its recommendations. This Court will not order an alcohol evaluation. Mr. Hophins achnowled~ed that he is a recovering alcohdic. He testified that he has not had a dri.k since 1992. This *,as controverted by his daughter ~nd sister-in-la*' at a minimum with reCord to his attendance at his brother's wedclin¢. The police department has not censured Mr. Hopkins [or alcohol abuse uor have the other individuals who testi[ied indicated that he has a current problcm with alcohol. 1,411 trust that/qr. I-Iophins is well aware o[ his ow~ limitations with regard to alcohol consmnption, that his dau~htor has an unfavor,,ble perception o[ him which ~ need to be remedied il he wishes to continue to have a relationship with her, anr~ that this Court will seriously restrict his cou~act with Michael anti Heather i~ the Court is made aware o[ any on?in~ problem with alcohol consumption. Si~lce the Court is not absolutely comdnced that Ms. Hopkins relocation to Orel~on occurred as inuocently as she would have this Court to believe, some penalb/should be imposed on her [or a relocatlou so distant [rom the children's father that his ~ihty to maintain a meaning~ relationship with his children is seriously curtailed. The followin~ is the decision of the Court: 1. Custody of the chddren Heather and Michael shall remain with Ms. Hopkins. She shall with as much advance notice as possible advise Mr. Hopkins of any major events in the children's lives so that he has the opportunity to participate if he is able; 2. Mr. Hopkins shall have the ~ollowing visitation with his children: a. Five weehs visitation with the children during the summer school recess period from on or about July l (depending on air flicht schedules) until 35 days later or on or &out 23 the conclusion of the first week in August (this should permit both children to return to their mother's residence in suf-ficient time to start school and obtain their school clothing and supplies); b. Mr. ttopkins shag he entitled to have the children for one week during the Christmas recess of the children from school and for one week during the children's Spring/Easter recess kern school if such is available in their school system. This is to occur t,e~inning with the 1998 Sprin~ recess. It is the Court's hope that the parents will he able to communicate and work out a scbedule over Chdstmas. Since this is a difJ:icult travel time, flexit~ihty needs to he incorporated so that the parents can make the best possible arrangements for their two children; c. There sbA1 be such other and diffe~e~t visitation as the parties may a~ree. Nothing shall preclude Mr. Hopkins from exerCiSin.~ visitation with the children in Oregon if business or his personal schedule permit so long as same does not interfere with their school s&edule; rt. Ms. l-Iopkins shall he responsible for the cost of transporting the children to and from their father's residence for the summer visitation and shall be responsible for one-half the cost of the Christmas and one-half the cost of the Spring recess periods of time with the children. Ms. I-Iopkius shag he responsible for the cost of sending the children to New York State aud Mr. Hopkins shall he responsible for returniU¢ the children to Oregon; e. Either pareut shall have reasonable telephone communications with the children while the cbil~lren are in the other parent's care anrt each parent shall have a minimum of one 24 phone call per week. I~or the weekly phone call l~etween the non-custodia! parent an3 the children ca~ their ~ather on Sunday evenin¢ he~een 7:00 an3 9:00 p.m. New York time. On ~he second an3 [ou~h weehen~ o[ ~he month, Mr. Hopkins shah initiate lhe c~ on Sunday ~enin¢ he~een T:00 an3 9:00 p.m. Ore~on time. ~Y other c~s dung the week initiate3 by a parent or the chddren ~th the other parent sh~ be the cost o~ the parent w~o has initiated the c~ or the ho~&old ¢om ~B~h the c~ originated. The &fldren sh~ have reasonable access by telephone or othe~se to the other parent ~hde i~ th~ oth~ parent's care. Nothing contained in this paragraph sha~ preclude the o~ parents ~rom correspondin¢ w/th the other; and [. Ms. Hopkins shall continue therapy ~or ~e chl}ttren with Ms, Brartshaw or another therapist and shall compel the children to attend until the therapist r[ischarges the children. Mr. Hopkins shall participate in said t~erapy and otherwise cooperate in the children's therapy anrl shall enlist the asdstance o[a local therapist il needed when the children are at his residence. Sairt local therapist shall 0ooperate With the children's therapist in Oregon. This shall constitute decision o[ this Court. Counsel ~or respondent shall submit an order in conformance with this c[ecision within 20 days o[ its date on 15 days notice to Mr. Hopkins anc[ Ms. Rawich. 1)atetl: Ma~ch 16, 1998 Kingston, New York HON. MARIANNE O. MIZEL Judhe o[ the Family Court 25 APPEAL NOTICE MAY, AFTER ~;;_u.u.~.., FOR A TERM NOT TO EXCEED SIX MITMENT TU CON F coURT- MONTHS FOR CONTEMPT 0 I I 13 OF THE FAMILY COURT ....,~=.,A~dT TO SECTION __--...~ ,mUST BE TAKEN r~.ar,--'-'-'- ROM THIS OH~'~'=r~ "' ACT, AN A_PP__F-~.L__.~ ~"~: I:i,=CEiPT OF THE ORO_F-__R__ B~Y~ N 30 uAx= ---- _-- FROM THE DA]I~ ~r WITHI 35 DAYS R APPELANT IN ..A,~.~IG BY THE CL~--~ vr C ..... ~,.xoDIAN · -,~- ..... - ------~ ~o THE I~ u~--- EF CE "Y IS EA.L, EST- APPELLANT, SERVICE DATE: UPON: ~Petitioner ~Respondent ~by mail j~ersonal service by mail ..__ personal service Petitioner's Attorney ¢/"Respondent's Attorneyy mail ~"~aw Guardian ~ mail ~ by mail ~ personal service ~ personal service ~ personal service Parent/Guardian DHFS Counsel _County Attorney Other Other Other Other ~ by mail ~ personal service _ by mail _ _ personal service by mail ~ personal service ~by mail .__.by mail ,_by mail ._._.by mai~ _- personal service ~ personal service ~ personal service _ personal service JOHN HOPKINS, Plaintiffs PATRICIA HOPKINS, Defendant · . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-4234 CIVIL TERM IN CUSTODY ORDER OF COURT AND NOW, this day of , 2002, upon consideration of the within petition to Enforce a Custody Decree of Another Jurisdiction, IT IS HEREBY ORDERED AND DIRECTED that Respondent's Complaint for Custody is dismissed. Respondent, John Hopkins, shall immediately return physical custody of the child, Heather Hopkins, to Petitioner, and that Petitioner shall retain physical custody of the child, pursuant to the terms set forth in the Order of Court, dated March 16, 1998, from the Sullivan County Family Court Division of New York, until further Order of Court from any appropriate jurisdiction. Any cost incurred for transportation of the child from Respondent to Petitioner shall be paid solely by Respondent. Respondent shall pay attorney's fees in the amount of $500.00 to Petitioner within twenty (20) days of the date of this Order. BY TIlE COURT, Judge cc: Marylou Matas, Esquire Attorney for Petitioner. Kara W. Haggerty, Esquire Attorney for Respondent EXHIBIT "C" JOHN HOPKINS, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW V. : PATRICIA HOPKINS, : NO. 02-4234 CIVIL TERM Defendant : 1N CUSTODY PETITION TO ENFORCE A CUSTODY DECREE. OF ANOTHER JURISDICTION PURSUANT TO Pa. C.S.A. 5356 AND NOW, comes Petitioner/Defendant, Patricia Hopkins, by and through her attorneys, Marylou Matas, Esquire, and Griffie & Associates, and files this Petition to Enforce a Custody Decree of Another Jurisdiction Pursuant to Pa. C.S.A. §5356, and in furtherance thereof states as follows: 1. o Your Petitioner is the above named Defendant, Patricia Hopkins, an adult individual currently residing at 14 Darrell Drive, Randolph, Norfolk County, Massachusetts. Your Respondent is the above named Plaintiff, John Hopkins, an adult individual currently residing at 2263 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania. Petitioner and Respondent are the natural parents of two minor children, namely, Heather Hopkins, bom December 20, 1986, and Michael Hopkins, born, November 25, 1989, (hereinafter referred to collectively as "Children" or individually as "Child"). Petitioner and Respondent were divorced by Order of Court, dated September 10, ° 1993. The parties' divorce Order incorporated the parties' custody stipulation, awarding primary physical custody of the children to Petitioner. Petitioner relocated with the children to Oregon in 1996. Respondent initiated custody proceedings in Sullivan County Court, Family Court Division, New York, in August 1996, around the time of Pet~tmner relocation with 10. the children to Oregon. Petitioner and Respondent are subject to an Order of Court, dated May 5, 1998, from the Sullivan County Court, Family Court Division, a copy of which is attached hereto and incorporated herein by reference as Exhibit "A". Said Order followed from the Order and Opinion of the Sullivan County Court, Family Court Division, dated March 16, 1998, a copy of which is attached hereto and incorporated herein by reference as Exhibit "B". Petitioner filed a certified copy of the aforesaid Order, dated March 16, 1998, in the Court of Common Pleas of Cumberland County, Pennsylvania, on October 1, 2002, pursuant to 23 Pa. C.S.A. §5356. 11. Pursuant to the terms of the Order of Court, dated March 16, 1998, Respondent exercised a period of visitation with the Children, at his current residence, from approximately July 15, 2002 through July 27, 2002. 12. Pursuant to the terms of the Order of Court, dated March 16, 1998, Respondent exercised a period of visitation with the Child, Heather, at his current residence, on or about August 24, 2002. 13. Respondent has restrained the Child to his physical custody since August 24, 2002. 14. Respondent has refused contact between Petitioner and the Child on several occasions since August 24, 2002. 15. Respondent refuses to return the Child to Petitioner sole physical custody, as per the Order dated March 16, 1998. 16. Respondent filed a Complaint for Custody on September 5, 2002, to the above docket number, and a custody conciliation conference is scheduled for October 3, 2002, a copy of said Complaint and Order being attached hereto and incorporated herein by reference as Exhibit "C". 17. Preliminary objections have been filed contemporaneously with this Petition, objecting to the Commonwealth's jurisdiction of the proceedings, as Respondent's only claim that the Court of Common Pleas of Cumberland County, Pennsylvania has jurisdiction in this matter is based upon his retention of custody of the child contrary to a valid Court Order. 18. Petitioner believes and therefore avers that she will be successful in her Preliminary Objections and the issue of custody will not be heard in this jurisdiction. 19. Petitioner desires for the Child to be returned to her sole physical custody immediately, pursuant to the terms of the Order of Court, dated March 16, 1998. 20. Petitioner retained the services of local counsel to pursue the within Petition and attached Preliminary Objections and Respondent should be responsible for the costs of attorney's fees incurred by Petitioner, pursuant to Pa. C.S.A. §§5349(c) and 21. 5356(b). Kara W. Haggerty, Esquire, counsel for Respondent, has been advised of the fact that the within Petition is being filed with the Court and as to the date of filing. WHEREFORE, Petitioner requests your Honorable Court to grant the following rehef: a.) Enforce the Order, dated March 16, 1998, from the Family Court Division, Sullivan County, New York; b.) Dismiss Respondent's Complaint for Custody, pursuant to 23 Pa. C.S.A. c.) §5349; Order Respondent to return the child to Petitioner's sole physical custody d.) e.) f.) immediately; Order Respondent to pay the costs of travel associated with the return of the child, pursuant to 23 Pa. C.S.A. §§5349 and 5356; Order Respondent to pay attorney's fees, in the amount of $500.00, pursuant to 23 Pa. C.S.A. §§5349 and 5356; and Award other relief as the Court may deem necessary. Respectfully submitted, GRIFFIE & ASSOCIATES *~vlarylou N~s, Esquir~ Attorney Jbzcff etitioner 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 VERIFICATION I, Marylou Matas, Esquire, counsel for PATRICIA HOPKINS, hereby swear and affirm that the facts set forth in this document are tree and correct to the best of my knowledge, information, and belief. I have sufficient knowledge or information and belief as to the averments stated in these pleadings, based upon my personal knowledge and information obtained from my client. This statement is made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. ate: IO/l /OZ- M~r~tas, Esqmre JOHN HOPKINS, Plaimiff V. PATRICIA HOPKINS, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : : : NO. 2002-4234 CIVIL TERM : : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 7TM day of OCTOBER, 2002, a Rule is issued upon Respondent/Plaintiff to Show Cause why the Petition to Enforce a Custody Decree should not be granted. Rule returnable TltURSI)AY~ OCTOBER 10~ 2002~ at 1:30 p.m. in Courtroom # 5 of the Cumberland County Courthouse, Carlisle, Pa. Marylou Matas, Esquire For the Petitioner Kara W. Haggerty, Esquire For the Defendant :sld JOHN HOPKINS Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNA : v. : NO. 02-4234 CIVIL TERM : : : CIVIL ACTION-LAW PATRICIA HOPKINS Defendant PLAINTIFF'S ANSWER TO PRELIMINARY OBJECTIONS OF- DEFENDANT TO PLAINTIFF'S COMPLAINT AND NOW, comes Plaintiff, John Hopkins, by and through hii attorney, Kara W. Haggerty, Esquire, ofAbom & Kumlakis, L.L.P., and respectfully submits this Answer to Preliminary Objections 6f Defendant and in support thereof answers as 1. 2. 3. 4. 5. 6. Admitted. Admitted. Admitted. Admitted. Admitted. This averment sets forth a conclusion of law to which no responsive pleading is required. In the event a responsive pleading is deemed necessary, it is denied that the Family Court Division of the State of New York, Sullivan County has jurisdiction to decide custody as of this date. Admitted. Admitted. 9. Admitted. 10. This averment is admitted in part and denied in part. It is admitted that the subject minor child had resided with Defendant in Oregon. It is denied that the subject minor child has resided with Defendant in Massachusetts. By way of further answer, the subject minor child has only spent two and one- half (2 1/2) weeks with Defendant in Massachusetts since May 2002. 11. It is specifically denied that Plaintiff filed his Complaint for Custody during the exerdse of a period of visitation with the child. By way of further answer, Plaintiff filed his Complaint for Custody at the request of his fifteen-year-old daughter during a period of custody modification agreed upon by the parties. 12. It is specifically denied that this Commonwealth is not the home state of the child. By way of further answer, home state jurisdiction is not the only basis for jurisdiction available to this Court. This Court has jurisdiction pursuant to 23 Pa.C.S.A. § 5344(a)(2) or (a)(4) which states that it would be in the best interest of the child for this Commonwealth to assume jurisdiction because the child and one parent have a significant connection with this Commonwealth and there is available in this Commonwealth substantial evidence concerning the present and future care, protection, training and personal relationships of the child, or it appears that no other state would have jurisdiction under the prerequisites of this statute and it would be in the best interest of the child that this Court assume jurisdiction. 13. Admitted. 14. It is specifically denied that the subject minor child has been located in this Commonwealth for a period of approximately five (5) weeks. By way of further answer, the subject minor child has been residing with Plaintiff on a full-time basis since August 23, 2002; in addition, the subject minor child had spent approximately seven (7) weeks together with Plaintiff over the summer after the subject minor child left Oregon. 15. It is specifically denied that the child's presence in this Commonwealth originated as a period of visitation with Plaintiff. By way of further answer, the subject minor child's presence in this Commonwealth originated as a modification of the custody order by agreement of the parties. 16. It is specifically denied that Plaintiff has restrained the child to his physical custody and refused to return her to Defendant's sole physical~ custody, and strict proof to the contrary is demanded. 17. This averment sets forth a conclusion of law to which no responsive pleading is required. In the event a responsive pleading is deemed necessary, home state jurisdiction is not the only basis for jurisdiction available to this Court: This Court has jurisdiction pursuant to 23 Pa.C.S.A. ~ 5344(a)(2) or (a)(4). 18. This averment is admitted in part and denied in part. It is admitted that the subject minor child is currently absent from Defendant's custody; however, it is denied that this is contrary to a valid Court Order. It is further denied that the child is absent from her home state because of her retention in this Commonwealth by the Plaintiff. 19. Admitted. 20. Admitted. 21. Admitted. 22. Plaintiff is without knowledge or information sufficient to fotin a belief as to the truth of this avemlent. WHEREFORE, Plaintiff respectfully requests this Honorable Court to overrule Defendant's Preliminary Objections based on the fact that this Court does have jurisdiction over the pending custody dispute pursuant to 23 Pa.C.S.A. ~ 5344(a)(2) or (a)(4) and this Court may modify a custody decree from another state pursuant to 23 Pa.C.S.A. ~ 5355. Respectfully submitted, ABOM & KUTULAKIS, L.L.P. . . aggerty, E(~e (] 8 South Hanover Street, Suite 204 Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiff JOHN HOPKINS Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERI.AND COUNTY, PENNA : v. : NO. 02-4234 CML TERM : : CML ACTION-LAW PATRICIA HOPKINS Defendant CERTIFICATE OF SERVICE AND NOW, this 7th day of October, 2002, I, Kara W. Haggerty, Esquire, hereby certify that I did serve a true and correct copy of the foregoing Plaintiff's Answer to Preliminary Objections of Defendant to Plaintiff's Complaint upon the Defendant by placing or causing to be placed said copy in the United States Mail, to Defendant's counsel addressed as follows: Marylou Matas, Esquire Gtiffie & Associates 200 North Hanover Street Carlisle, PA 17013 Date: Kara W. Haggerty, L~t~ire (~ Attorney I.D. No. 86914 8 South Hanover Street, Suite 204 Carlisle, PA 17013 (717) 249-0900 A#orn~ for Plainliff JOHN HOPKINS, Plaintiff PATRICIA HOPKINS, Defendant 2002 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2002-4234 CIVIL TERM : : CIVIL ACTION - LAW : : IN CUSTODY ORDER OF COURT AND NOW, this ~ay of ~~/~__, 2002, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. The hearing scheduled for October 28, 2002 is hereby continued generally. It may be rescheduled at the request of either party 2. The Father, John Hopkins, and the Mother, Patricia Hopkins, shall have shared legal custody of Heather Hopkins, born December 20, 1986. 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 her health, education and religion. 3. Father shall have temporary physical custody of the Child. Mother shall have periods of partial physical custody as follows: A. From December 26, 2002 to January 1, 2003. B. Such other times as the parties agree. 5. Transportation shall be shared as agreed by the parties. 6. This Order is entered pursuant to an agreement of the parties at a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. Either party may contact the Conciliator to request another Conciliation. Edward E. Guido, Jo cc: Kara W. Haggerty, Esquire, Counsel for Father Marylou Matas, Esquire, Counsel for Mother JOHN HOPKINS, Plaintiff PATRICIA HOPKINS, Defendant OCT 1 4f.09/ : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : 2002-4234 CIVIL TERM : : CIVIL ACTION - LAW : : IN CUSTODY PRIOR JUDGE: Edward E. Guido, 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 conceming the Child who is the subject of this litigation is as follows: NAME Heather Hopkins DATE OF BIRTH CURRENTLY IN CUSTODY OF December 20, 1986 Father 2. A Conciliation Conference was held in this matter on October 14, 2002, with the following individuals in attendance: The Father, John Hopkins, with his counsel, Kara W. Haggerty, Esquire and the Mother, Patricia Hopkins, with her counsel Marylou Matas, Esquire. 3. A Prior Order of Court was entered by the Honorable Edward E. Guido following a hearing on October 1 l, 2002. Said Order dismissed Mother's Preliminary Objections and scheduled a hearing on the enforcement of a March 16, 1998 Order from New York state. 4. The parties agreed to the entry of an Order in the form as attached. Date rney, Esquire Custody Conciliator JOHN HOPKINS, : Plaintiff : : V. : : PATRICIA HOPKINS, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-4234 CIVIL TERM QRDER OF COURT AND NOW, this 10th day of October, 2002, after hearing, the defendant's preliminary objections attacking jurisdiction are denied. The parties are directed to forthwith proceed to conciliation. The Court Administrator is directed to · schedule the conciliation within 10 days of today's date. In the event that the parties are unable to reach an agreement at the conciliation conference, a hearing on the plaintiff's petition to modify the New York decree, as well as the defendant's petition to enforce the New York decree, shall be scheduled before the undersigned on October 28, 2002, at noon. By the Edward E. Guido, J. Kara W. Haggerty, Esquire For the Plaintiff Marylou Matas, Esquire For the Defendant it JOHN HOPKINS, Plaintiff V. PATRICIA HOPKINS, Defendant NOV ~ : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ; : NO. 2002-4234 CIVIL TERM : : CIVIL ACTION - LAW : : IN CUSTODY ORDER OF COURT AND NOW, this ~J~ day of ~'~'"'~' ~'- ., 2002, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. The Prior Order of Court dated October 15, 2002 is hereby vacated and replaced with the following: 2. A Hearing is scheduled in Court Room No. ,-~ , of the Cumberla. n~d County Court House, on the g**x day of ~ ~ - ,2003, at ! O. O O o'clock, A . M., at which ti~mony willie taken. ~For purposes ofthi~ 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. 3. The Father, John Hopkins, and the Mother, Patricia Hopkins, shall have shared legal custody of Heather Hopkins, born December 20, 1986. 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 her health, education and religion. 4. Mother shall have primary physical custody of the Child. 5. Father shall have periods of partial physical custody of the Child as the parties agree. the Child. The Child shall have liberal telephone contact: with Father as decided by 7. The parties may modify this Order by mutual agreement. In the absence of mutual consent, the terms of this Order shall control Edward E. Guido, Jo cc/John Hopkins, pro se 2263 Walnut Bottom Road Carlisle, PA 17013 /Marylou Matas, Esquire, Counsel for Mother JOHN HOPKINS, Plaintiff V. PATRICIA HOPKINS, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : 2002-4234 CIVIL TERM : : CIVIL ACTION - LAW : IN CUSTODY PRIOR JUDGE: Edward E. Guido, 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 Heather Hopkins DATE OF BIRTH CURRENTLY IN CUSTODY OF December 20, 1986 ]Father 2. A Conciliation Conference was held in this matter on November 26, 2002, with the following individuals in attendance: The Father, Jo[m Hopkins, pro se and the Mother, Patricia Hopkins, with her counsel Marylou Matas, Esquire. 3. Prior Orders of Court were entered by the Honorable Edward E. Guido dated October I 1, 2002 and October 15, 2002. The October 11, 2002 Order dismissed Mother's Preliminary Objections and scheduled a hearing on the enforcement of a March 16, 1998 Order from New York state. The October 15, 2002 Order continued generally the hearing of October 28, 2002 and granted shared legal custody with Father having temporary physical custody of the Child, based on the agreement of the parties and the wishes of the Child. 4. The Child appeared at the November 26, 2002 Conciliation Conference and asked to be returned to the physical custody of her Mother. The Child described a conflicted relationship with her Father. When the Child advised Father that she wished to return to her Mother, Father denied telephone and internet communications between the Child and Mother, including in-school keyboarding class that the Child now advises she will fail as a result of Father's prohibition. The Child further described marital discord between Father and stepmother. The Child feels like she is put in the middle of the marital discord. The Child indicated that she spends most of her time in her room to avoid the conflict in the home. Stepmother has a drinking problem. Father identified alternate housing for himself and the Child but has not followed through with it. Child recently learned that Father and stepmother searched her belongings and read a private journal revealing oral sex and pot smoking by the Child. The Child admitted that the only reason she said she wanted to live with Father at the last conference was because she was angry with Mother for moving from Oregon to Massachusetts. 5. Father's position on custody is as follows: He seeks primary physical custody based on allegations that Mother does not properly supervise the Child as evidenced by the oral sex and pot smoking. He claims that Mother has lured the Child back to her by promising that she will move the family back to Oregon. Father denies his present wife has a drinking problem and that he located alternate housing for himself and the Child. 6. Mother's position on custody is as follows: She seeks primary physical custody of the Child based on the Child's preference and the temporary nature of the prior Order of Court dated October 15, 2002. She denied kn.owledge of the Child's sexual activities and drug use. 7. Based on the mature, reasoned, preference of the Child, the Conciliator recommends an Order transferring physical custody of the Child back to Mother. The Conciliator further recommends the scheduling of a hearing. It is expected that the hearing will require one day. Date ~tcqu{dline M. X erney, Esquire ~ Custody Conciliator JOHN HOPKINS, Plaintiff V. PATRICIA HOPKINS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2002-4234 CIVIL TERM IN CUSTODY ORDER OF COURT AND NOW this day of January, 2003, upon presentation and consideration of the within Petition for Continuance, the hearing previously scheduled in this matter for Monday, January 6, 2003, ,at 10:00 a.m., in Courtroom #5 is hereby Ed~'~rd E Guido, JUDGE CC.' Marylou Matas, Esquire Attorney for Plaintiff John Hopkins, pro se JOHN HOPKINS, Plaintiff PATRICIA HOPKINS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-4234 CIVIL TERM QRDER OF COURT AND NOW, this 6th day of January, 2003, the plaintiff having failed to appear for the hearing as scheduled, our order of December 3, 2002, shall remain in full force and effect. If father desires to modify the terms of this order, we will schedule another hearing without the need for conciliation, if petition is filed within the next 30 days. By the Court, Edward E. Guido, j. John Hopkins, Pro se Marylou Matas, Esquire For the Defendant it