HomeMy WebLinkAbout2009-553
ROBERT MILLER, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
BRIAN BARRICK, :
DEFENDANT : 09-0553 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS TO STANDING
BEFORE BAYLEY, J. AND EBERT, J.
MEMORANDUM OPINION AND ORDER OF COURT
Bayley, J., September 10, 2009:--
On February 3, 2009, Robert Miller, the step-father of Andrew J. Barrick,
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born March 30, 2002, filed a complaint seeking custody of Andrew. The father
is Brian Barrick. The case was referred to conciliation. On June 30, 2009, the
father, Brian L. Barrick joined in a “Petition to modify custody order” with Debra
Hostler, an aunt of Andrew, and Lorriene Kelly and Thomas H. Kelly, III,
Andrew’s grandparents, seeking an order to place sole legal custody and primary
physical custody of Andrew with the aunt and grandparents. Robert Miller filed
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preliminary objections challenging the standing of the aunt and grandparents.
In contrast to when grandparents seek temporary physical custody,
R.M. v.
grandparents have automatic standing to seek primary physical custody.
Baxter, ex rel. T.M.,
777 A.2d 446 (Pa. 2001). As to the aunt, a hearing is
required to determine if she can establish a legal basis, in loco parentis, for
His wife, Jessica, the mother of Andrew, died on December 28, 2008.
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On July 23, 2009, following a conciliation conference, an interim order was
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entered in which, Robert Miller, was granted sole legal and primary physical
custody of Andrew pending a hearing before Hess, J. on October 23, 2009.
09-0553 CIVIL TERM
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standing to seek primary physical custody of Andrew. Accordingly, the following
order is entered.
ORDER OF COURT
IT IS ORDERED:
AND NOW, this day of September, 2009,
(1) The preliminary objection of Robert Miller to the standing of Lorriene Kelly
IS DISMISSED.
and Thomas H. Kelly, III,
(2) A hearing shall be conducted to determine if Debra Hostler has standing to
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seek primary physical custody of Andrew.
By the Court,
Edgar B. Bayley, J.
Jane Adams, Esquire
For Robert Miller
Stephanie E. Chertok, Esquire
For Brian Barrick, Lorriene Kelly, Thomas Kelly, Debra Hostler
Judge Kevin A. Hess
:sal
The procedure utilized by Debra Hostler, Lorriene Kelly and Thomas Kelly, is
3
incorrect. They should either have filed a petition to intervene in the current
custody action, and then if granted, filed their complaint for custody, or instituted
a separate custody action and sought to have the two cases consolidated. It will
be up to Judge Hess to determine if they can continue under the current posture
of the case.
A hearing shall be scheduled by Judge Hess, either in conjunction with the
4
hearing he now has scheduled for October 23, 2009, or separately, to determine
if Debra Hostler has standing.
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ROBERT MILLER, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
BRIAN BARRICK, :
DEFENDANT : 09-0553 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS TO STANDING
BEFORE BAYLEY, J. AND EBERT, J.
ORDER OF COURT
IT IS ORDERED:
AND NOW, this day of September, 2009,
(1) The preliminary objection of Robert Miller to the standing of Lorriene Kelly
IS DISMISSED.
and Thomas H. Kelly, III,
(2) A hearing shall be conducted to determine if Debra Hostler has standing to
4
seek primary physical custody of Andrew.
By the Court,
Edgar B. Bayley, J.
Jane Adams, Esquire
For Robert Miller
Stephanie E. Chertok, Esquire
For Brian Barrick, Lorriene Kelly, Thomas Kelly, Debra Hostler
Judge Kevin A. Hess
:sal
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A hearing shall be scheduled by Judge Hess, either in conjunction with the hearing he
now has scheduled for October 23, 2009, or separately, to determine if Debra Hostler
has standing.
09-0553 CIVIL TERM
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