You may have seen the infomercials featuring Bob Vila in a warm, comfortably heated living room. Vila kneels close to a portable heater while a family sits leisurely going about their activities. The message is that this portable heater is safer because of an infrared heating process that eliminates hot spots and that this heater costs less to operate.
I have a background in marketing and advertising. My father has been in the business 50 years and I have helped to write copy (the message in an advertisement) that can turn a negative into a positive. My legal background also allows me to understand how people attempt to shape the 'truth' to fit their agenda.
After seeing some of the claims made about this product I decided that it would be fun to order one knowing that it would be returned because it cannot meet the claims made.
I ordered the Gen3 Model 1000 that is supposed to heat a 1000 square foot area with eight foot ceilings. This model has a 1500 watt rating and can operate from any grounded household outlet.
Before we get to the test results let's first review some of the claims as they appear on the EdenPURE website:
"Typical heating sources like furnaces, fireplaces, corn/fuel/propane burners, and normal space heaters reduce humidity which dries out your skin and sinuses causing bloody noses, and irritated eyes." I do not doubt this at all. Winter air overall is dried whether it is artificially heated. Some type of humidity system should be used by anyone who experiences those symptoms.
"The EdenPure heating system also heats the room evenly, wall-to-wall and floor-to-ceiling. Other heating sources heat rooms unevenly with most of the heat ending up near the ceiling." This was the statement that led to the decision to purchase this product and test it. I am not a physicist by any means but physics is just one of the many subjects I have studied and I, along with nearly everyone else, know that heat rises. Vila suggest that this product defies the laws of physics saying "The result is the heat you need to feel comfortable is now down low where you dwell and you are no longer wasting money heating the ceiling!"
The most spurious claim is that "it pays for itself in a matter of weeks!"
So onto the test. The first test location was a brick three-car garage with ceiling just under eight feet.. Overall square footage is about 700. The walls are insulated with 3.5" R13 batts. The outdoor temperature starts in the high 40's and peaks around 52 Fahrenheit. According to the claims made by EdenPure this heater should make this garage very comfortable. The indoor temperature is slightly cooler, nearer the overnight temperature.
The heater is placed in the center of the garage and turned on in mid-morning. For this initial test only a single thermometer was used. The result was that by late afternoon the temperature has risen to 53 degrees.
The second test was in a lapboard siding house also with walls that are insulated with 3.5" R13 batts and ceiling under eight feet. The footprint is 42 x 23 feet resulting in square footage just under 1000. The outdoor temperature overnight and through the day ranged between 30 and 34 degrees. The temperature in the living room, where the heater was placed, was 46 degrees at the beginning of the test. After three hours of running the heater non-stop there was little overall temperature change in the house.
The living room at chest level was 52 degrees which was achieved somewhat quickly, slightly warmer at the ceiling and significantly cooler on the floor. The hallway was slightly warmer along with the two bedrooms. Further back in the house, on the North side, there was no temperature change in the kitchen or bathroom which both remained around 43 degrees.
For a comparison test a Holmes 1500 Watt ceramic portable space heater purchased at a mass retailer for $24 was used. After the room temperatures had returned to their starting levels the test was ran again using the Holmes heater. The Holmes heater produced hotter air that seemed to blow about the same distance as the EdenPure heater.
After three hours of running the heater non-stop there was little overall temperature change in the house. The results were nearly identical as the previous test except that the living room was slightly warmer at 53 degrees. The wall surfaces seemed warmer also but this could be attributable to the heating in the prior test being retained after the air temperature had dropped.
I my many years of life I have lived in homes with steam radiators, oil furnace, natural gas furnace and electric furnace as whole-house heating sources. I have found each to function better than the EdenPure heater. In comparing the cost of heating a similar sized home to 65 degrees using a natural gas heater the EdenPure would cost the same to keep the same house around 50 degrees. This is hardly a cost savings.
In looking at how to turn a negative into a positive Vila shows us a thermal imaging video of the room and points out that there are no "hot spots". This is what the claim that the EdenPure heats the room evenly is based upon. What you are not told in this advertisement is that no part of the the room is hot. There are no hot spots because the entire room is cool.
Based upon all the miraculous claims made about this heater, such as it can defy the laws of physics, I was left wondering why this heater wasn't accompanied by a perpetual motion machine that would produce its own electricity to operate it.
My best advice. Save your $397 and use a furnace at much lower cost or get the same or better results from a $24 space heater.
If you think it is too good to be true that a 1500 watt space heater can sufficiently heat an entire house that is because it is. This proves once again the old saying, If it sounds too good to be true it probably is.
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©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Tuesday, December 22, 2009
Monday, December 21, 2009
Child Support Modification pays for itself
Nearly everyday I get a request from someone to provide legal assistance. These requests are usually for child custody and support issues. Family law is my specialty both as a lobbyist and legal instructor and is where I am usually recommended.
I provide guidance on not only what forms to use or how to draft pleadings but also what stressors to expect in the courtroom and coping skills to apply. I also have a substantial collection of cases that clients may read to gain insight into how court's apply the law and what is and is not successful. I do this for clients whether they are represented by attorneys.
In short, I am a consultant that specializes in maximizing the effectiveness of your time, the court and your attorney if you are represented. For those who are represented, my fees are easily paid for by the savings in attorney fees. Of course you cannot put a price on the cost of losing a custody issue because you were not properly training in the procedure.
What has prompted me to write about this issue today is the matter of financial compensation. I don't accept one new client per day. This is not because there are not enough legitimate cases out there, there are plenty. The interesting thing is that the vast majority of people who want to use my service simply refuse to pay for it.
In examining this issue let's first consider what money is. Money is a store of labour. That is it is a medium of exchange for the work done by a person which can be exchanged for the goods or services provided by another. Essentially when you pay for something you are working.
So why then do so many people refuse to "work" to modify custody or child support issues related to their children? There is one conclusion that stands out as obvious; these people aren't willing to put forth an effort for their children. This leads me to the harsh reality that maybe this is why they don't have custody to begin with.
There are some people who truly cannot afford to pay me for a full blown child custody battle that can run as high as $2000 through me or $25,000 using an attorney. I wonder though why someone who cannot afford $250 for a simple modification thinks he or she is financially fit enough to provide for the children.
Child support modifications pay for themselves. I used an attorney for my first modification. It took 13 weeks for that to pay for itself. I then did another modification myself which reduced my support to less than 1/3 of what the attorney got it down to.
The modifications that I have helped people obtain usually pay for themselves in about a month, sometimes less. Still, I often hear, "I can't afford that." Here is an actual quote that I recently received: "I can not cover any fees....Thanks for your time though"
I am left to wonder why allowing child support arrears to build and facing contempt hearings and potential jail time is what people can afford. It would seem that those people who really care about their children would not want to be in that situation and could afford (work) to see that it doesn't happen.
When it comes to child support or custody how can someone not afford to be prepared. Having my child support payments set $6000 per year too high was something I could not afford. As an unemployed stay-at-home parent I couldn't afford not to have it reduced. A year ago I wrote about why now may be the time to seek a child support payment modification. It still applies.
If you don't mind paying less than the value you will receive please contact me. But if you want something for nothing just stand on a street corner with a tin cup. I don't charge based upon supply and demand. I simply charge the least I can afford to live on and then only take the cases that I strongly support. That is why I have an application process for my services.
I provide guidance on not only what forms to use or how to draft pleadings but also what stressors to expect in the courtroom and coping skills to apply. I also have a substantial collection of cases that clients may read to gain insight into how court's apply the law and what is and is not successful. I do this for clients whether they are represented by attorneys.
In short, I am a consultant that specializes in maximizing the effectiveness of your time, the court and your attorney if you are represented. For those who are represented, my fees are easily paid for by the savings in attorney fees. Of course you cannot put a price on the cost of losing a custody issue because you were not properly training in the procedure.
What has prompted me to write about this issue today is the matter of financial compensation. I don't accept one new client per day. This is not because there are not enough legitimate cases out there, there are plenty. The interesting thing is that the vast majority of people who want to use my service simply refuse to pay for it.
In examining this issue let's first consider what money is. Money is a store of labour. That is it is a medium of exchange for the work done by a person which can be exchanged for the goods or services provided by another. Essentially when you pay for something you are working.
So why then do so many people refuse to "work" to modify custody or child support issues related to their children? There is one conclusion that stands out as obvious; these people aren't willing to put forth an effort for their children. This leads me to the harsh reality that maybe this is why they don't have custody to begin with.
There are some people who truly cannot afford to pay me for a full blown child custody battle that can run as high as $2000 through me or $25,000 using an attorney. I wonder though why someone who cannot afford $250 for a simple modification thinks he or she is financially fit enough to provide for the children.
Child support modifications pay for themselves. I used an attorney for my first modification. It took 13 weeks for that to pay for itself. I then did another modification myself which reduced my support to less than 1/3 of what the attorney got it down to.
The modifications that I have helped people obtain usually pay for themselves in about a month, sometimes less. Still, I often hear, "I can't afford that." Here is an actual quote that I recently received: "I can not cover any fees....Thanks for your time though"
I am left to wonder why allowing child support arrears to build and facing contempt hearings and potential jail time is what people can afford. It would seem that those people who really care about their children would not want to be in that situation and could afford (work) to see that it doesn't happen.
When it comes to child support or custody how can someone not afford to be prepared. Having my child support payments set $6000 per year too high was something I could not afford. As an unemployed stay-at-home parent I couldn't afford not to have it reduced. A year ago I wrote about why now may be the time to seek a child support payment modification. It still applies.
If you don't mind paying less than the value you will receive please contact me. But if you want something for nothing just stand on a street corner with a tin cup. I don't charge based upon supply and demand. I simply charge the least I can afford to live on and then only take the cases that I strongly support. That is why I have an application process for my services.
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Make a suggestion for me to write about.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions. 
©2008, 2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Friday, December 11, 2009
2010 Indiana Senate Bill 0070 - SB70 Adoption Paternity
In July of this year as I was reading the opinions of the Indiana Supreme Court I came across a case involving the custody of an unborn child. The mother had filed a petition for the child to be adopted. The father filed a paternity action to stop the adoption. I wrote about this case here.
The trial court ruled that the father had irrevocably consented to the adoption by not filing an objection in the trial court and the Court of Appeals agreed. The Supreme Court disagreed, correctly, and reversed the judgment.
The confusion arose from a discrepancy in the adoption and paternity laws. The local court rules permitted adoption petitions to be filed in any court, but required that all paternity cases "shall be filed" in the Circuit Court. The father complied. The adoptive parents argued to the Superior Court that the father had irrevocably and impliedly consented to the adoption solely because he had not filed a motion to contest the adoption in that court within thirty days of receiving notice.
The Superior Court entered an order finding that the father had failed to file in the Supe-rior Court a timely motion to contest the adoption as required by Indiana Code § 31-19-10-1(b) and, based solely on this ground, it found the father's consent therefore irrevocably implied under Indiana Code § 31-19-9-12(1). The court also found adoption to be in the child's best interests, granted the adoption, and ordered that the father's parental rights be terminated. The father appealed and the judgment was upheld.
The holding was that the statute authorizing the filing of a motion to contest an adoption states: "A person contesting an adoption must file a motion to contest the adoption with the court not later than thirty (30) days after service of notice of the pending adoption." Id. § 31-19-10-1(b) (emphasis added) and that the father did not file with the adoption court. The Supreme Court reversed on the ground that the statute does not specify with particularity what court.
In response I submitted this bill to my state senator, Phil Boots. Senator Boots submitted my proposal to the Legislative Services Agency (LSA) who crafted this bill which was introduced by Senator Boots.
When the bill comes on for hearing I will need people who have gone through a paternity proceeding or objected to an adoption of his child to testify. Please contact me if you can do this.
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©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
The trial court ruled that the father had irrevocably consented to the adoption by not filing an objection in the trial court and the Court of Appeals agreed. The Supreme Court disagreed, correctly, and reversed the judgment.
The confusion arose from a discrepancy in the adoption and paternity laws. The local court rules permitted adoption petitions to be filed in any court, but required that all paternity cases "shall be filed" in the Circuit Court. The father complied. The adoptive parents argued to the Superior Court that the father had irrevocably and impliedly consented to the adoption solely because he had not filed a motion to contest the adoption in that court within thirty days of receiving notice.
The Superior Court entered an order finding that the father had failed to file in the Supe-rior Court a timely motion to contest the adoption as required by Indiana Code § 31-19-10-1(b) and, based solely on this ground, it found the father's consent therefore irrevocably implied under Indiana Code § 31-19-9-12(1). The court also found adoption to be in the child's best interests, granted the adoption, and ordered that the father's parental rights be terminated. The father appealed and the judgment was upheld.
The holding was that the statute authorizing the filing of a motion to contest an adoption states: "A person contesting an adoption must file a motion to contest the adoption with the court not later than thirty (30) days after service of notice of the pending adoption." Id. § 31-19-10-1(b) (emphasis added) and that the father did not file with the adoption court. The Supreme Court reversed on the ground that the statute does not specify with particularity what court.
In response I submitted this bill to my state senator, Phil Boots. Senator Boots submitted my proposal to the Legislative Services Agency (LSA) who crafted this bill which was introduced by Senator Boots.
When the bill comes on for hearing I will need people who have gone through a paternity proceeding or objected to an adoption of his child to testify. Please contact me if you can do this.
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©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Wednesday, December 9, 2009
Survey Responses - Right to remain silent
The responses to the survey about the Right to Remain Silent when Questioned by a Police Officer have been received and the survey is closed. The reason I created this survey was because I was watching one of those television programs about a criminal conviction being challenged with DNA evidence. Ultimately, it turns out that the person convicted is exonerated based upon the newly obtained DNA evidence. These types of programs go through the background of the case, a re-enactment and sometimes show interviews of witnesses and the suspect. This one showed portions of an interview of the convicted suspect who signed a confession.
Coerced police confessions are not always the result of the dramatic beating of a suspect as is often portrayed in movies. Prior to the famous Miranda case was Watts v Indiana in 1949. There the United States Supreme Court overturned the confession of a suspect who was held for days in solitary confinement in a cell with no place to sit or sleep except on the floor, and was interrogated by relays of police officers, usually until long past midnight.
In this article methods to reducing false confessions are discussed. Of course that doesn't mean that police beatings to force confessions do not still occur. This 2008 story is about a beating of a suspect by the Chicago Police Department.
The right to remain silent exist at many points during police contact. Police officers are not required to advise you of your constitutional right to remain silent and your constitutional right to an attorney unless you are “in custody.” This does not necessarily mean that you have to be in a police vehicle, or in handcuffs, or at the police station. If you have been advised by a police officer to remain somewhere then you are "in custody". The only questions you need to answer are your name and address.
The ACLU provides this article about the erosion of the right.
In Missouri v Seibert, Patrice Seibert was convicted of second-degree murder for her role in the death of Donald Rector in a fire in the mobile home they shared. Seibert was arrested five days after the fire. Before her arrest, a supervising officer told the officers sent out to question Seibert to advise her of her Miranda rights. But before doing so, an officer interrogated her alone for nearly an hour until she made a statement implicating herself.
The officer then gave her a break and a cup of coffee, and came back 20 minutes later to read Seibert her Miranda rights. He had her sign a waiver, turned on a tape recorder and had her repeat the statements she had made prior to the Miranda warning. The officer said he had been trained to conduct the interrogation this way.
Missouri's highest court later reversed Seibert's conviction due to the unconstitutional method the police had used to obtain her statements.
That tactic is becoming more common, not less, even after the Seibert ruling. If you don't want to sit in prison awaiting the ruling of an appeals court then keep silent.
Police departments in Arizona, a bastion of corruption, are not quick to learn about the rights of citizens. I have previously written about the Arizona Attorney General stealing tax return checks. In Edwards v Arizona the US Supreme Court ruled that once a suspect invokes his right to remain silent and request for legal counsel he cannot waive that right unless the waiver is made knowingly and intelligently.
Ultimately there is one conclusion; invoke your right to remain silent and demand immunity if you are going to speak to the police. One of the alarming results was that 36% of the respondents felt that speak to the police would eliminate themselves as a suspect. The reality is that this just doesn't happen. Police interview suspects to build a case against them without regard for truth. The Miranda right clearly states this; your statements will be used against you.
The results are in no way scientific. The survey was open to anyone through my blawg, Facebook friends and a community chat forum. I have added some commentary and supporting reasoning to both documents.
Survey Answers
Survey Results
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©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Coerced police confessions are not always the result of the dramatic beating of a suspect as is often portrayed in movies. Prior to the famous Miranda case was Watts v Indiana in 1949. There the United States Supreme Court overturned the confession of a suspect who was held for days in solitary confinement in a cell with no place to sit or sleep except on the floor, and was interrogated by relays of police officers, usually until long past midnight.
In this article methods to reducing false confessions are discussed. Of course that doesn't mean that police beatings to force confessions do not still occur. This 2008 story is about a beating of a suspect by the Chicago Police Department.
The right to remain silent exist at many points during police contact. Police officers are not required to advise you of your constitutional right to remain silent and your constitutional right to an attorney unless you are “in custody.” This does not necessarily mean that you have to be in a police vehicle, or in handcuffs, or at the police station. If you have been advised by a police officer to remain somewhere then you are "in custody". The only questions you need to answer are your name and address.
The ACLU provides this article about the erosion of the right.
In Missouri v Seibert, Patrice Seibert was convicted of second-degree murder for her role in the death of Donald Rector in a fire in the mobile home they shared. Seibert was arrested five days after the fire. Before her arrest, a supervising officer told the officers sent out to question Seibert to advise her of her Miranda rights. But before doing so, an officer interrogated her alone for nearly an hour until she made a statement implicating herself.
The officer then gave her a break and a cup of coffee, and came back 20 minutes later to read Seibert her Miranda rights. He had her sign a waiver, turned on a tape recorder and had her repeat the statements she had made prior to the Miranda warning. The officer said he had been trained to conduct the interrogation this way.
Missouri's highest court later reversed Seibert's conviction due to the unconstitutional method the police had used to obtain her statements.
That tactic is becoming more common, not less, even after the Seibert ruling. If you don't want to sit in prison awaiting the ruling of an appeals court then keep silent.
Police departments in Arizona, a bastion of corruption, are not quick to learn about the rights of citizens. I have previously written about the Arizona Attorney General stealing tax return checks. In Edwards v Arizona the US Supreme Court ruled that once a suspect invokes his right to remain silent and request for legal counsel he cannot waive that right unless the waiver is made knowingly and intelligently.
Ultimately there is one conclusion; invoke your right to remain silent and demand immunity if you are going to speak to the police. One of the alarming results was that 36% of the respondents felt that speak to the police would eliminate themselves as a suspect. The reality is that this just doesn't happen. Police interview suspects to build a case against them without regard for truth. The Miranda right clearly states this; your statements will be used against you.
The results are in no way scientific. The survey was open to anyone through my blawg, Facebook friends and a community chat forum. I have added some commentary and supporting reasoning to both documents.
Survey Answers
Survey Results
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©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Friday, December 4, 2009
Custody discussions with Legislators this week
On Tuesday 01 December 2009 I attended a discussion forum on the proposed constitutional amendment to cap property taxes. The event was hosted by the Meridian-Kessler Neighborhood Association with the help of Aaron Smith of WatchDog Indiana. Senators, Breaux, Schnieder and Taylor along with Representatives Delaney and Noe attended the event.
There was lively discussion and debate about the merits of and potential problems with a constitutional limit on property taxes. Although I live in Lebanon now, I grew up in the MKNA area. This provided an opportunity to see quite a few people I know and to also make some new acquaintances. But, taxes are not my issue so I will move on to child custody issues.
Before and after the event I had the opportunity to speak with most of the legislators. Senator Schneider is the state's newest senator after having replace Terresa Lubbers in August of this year. Lubbers took a job as the Indiana Commissioner for Higher Education. Senator Schneider is a fiscal conservative who expressed interest in child custody matters and would like to be included in our efforts.
Senator Taylor and I spoke about some legislation that we have been working on since the last session. Senator Taylor sat on the Indiana Child Custody and Support Advisory Committee [ICCSAC] as a freshman member this year. He believes that he will be able to sponsor two of our bills.
Representative Noe and I discussed family law issues in general and where we would like to see Indiana headed in that arena. Representative Noe is the legislator I have worked with the longest on child custody issues. She is very firmly is support of children having access to and the care and support of both parents and other child-friendly legislation. She may be able to sponsor a bill for us although limited to only five this session.
On Tuesday I spoke with Senator Boots about a bill that I proposed to bring conformity to Indiana's adoption and paternity laws. Back in July of this year I wrote about the rare but important need for this bill and contacted Senator Boots then. I am very appreciative that Senator Boots had submitted that bill on Monday.
I do believe that this bill will go through the Senate Judiciary Committee chaired by Senator Bray. I am confident that Senator Bray will set this bill for a hearing and that, with proper testimonial support, it will get passed. I would appreciate anyone having experience as a party, especially pro se, or attorney who has filed a paternity action while an adoption action involving the same child was pending to please contact me.
Indiana Custodial Rights Advocates currently has six bills we are seeking to get passed during this short session of the General Assembly. We would like to have the remaining five bills submitted by opening day on 05 January 2010. We are starting to make substantive progress to make Indiana a more child-friendly state but do need additional help. If you can do as little as forward an email please contact us.
Members of the Indiana Custodial Rights Advocates will be meeting again on 21 December 2009 at 7:30pm at the Marrott in Indianapolis. Our legislative liaisons will be attending the opening day of the second session of the 116th Assembly at the State House on Tuesday, 05 January 2010.
If you would like to assist us or meet your legislators on opening day please contact me.
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©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Tuesday, December 1, 2009
Your right to remain silent when questioned by a police officer
If you haven't actually been interviewed by a detective you most likely have seen a police interview portrayed in a movie or television show. Some times the portrayal is very realistic and others times far from reality.
Before continuing I would like for you to take a simple eight question multiple choice survey about the right to remain silent when being questioned by a police officer. Please do not complete the survey after reading this article as it will skew the results. Each question has a 'most correct' answer but this survey is designed to measure common knowledge of the population prior to reading this article.
Access the survey here.
I was drawn to this topic by the recent perjured statements made by Colfax Indiana Marshal Duane Lewellen to the United States District Court for the Southern District of Indiana. More about that is available here. Lewellen had come to my house and asked about a political sign. He then lied about it to the court.
I am reminded that there is no circumstance in which a person should consent to a police interview unless immunity has been granted. There are two phenomena that occur within policing that raise concern and require that you not consent to a police interview. The first is what is known as "testilying" and occurs as part of the police training process.
Testilying is the act of police officers going into court or giving depositions in which the officers fails to abide by his oath to "tell the truth, the whole truth and nothing but the truth". This is often manifested by the omission of exculpatory evidence, statements or events. It can range from simply having "no recollection" of events favourable to you up to saying that you admitted to the crime when you did nothing more than say you want to speak to a lawyer.
Here is an example of "testilying" and just one of the reasons why you don't want to speak to the police. You are asked about a guy who was severely beaten in the parking lot outside a bar after being seen with you inside. During questioning, which you are told is part of gathering "witness statements" you tell the investigator, "I have no idea who could have done it. I didn't see anyone with him. You know, it could have been anyone. He was always arguing and getting into fights. I mean, we were arguing about his girlfriend that night right before he walked out. She had been in there earlier and he smacked her for dancing with some guy and then threatened him. The two of them left and I told him you can't just hit a woman like that. He got all irritated with me and left."
This sounds like helpful information to the police. You have provided information that he gets in lots of fights and had just hit his girlfriend and threatened the guy she was with right before he left the bar. But after the prosecutor finds out that you had been fired from the victim's construction company a week earlier the case takes a different turn. At your trial the officer testifies that, "The suspect told me that he and the victim had been arguing over his girlfriend right before the victim left the bar." Sounds like your "helpful" statement is being used against you.
Another thing that causes officers to target the innocent is "noble cause corruption" [NCC] which is basically a breaking of the rules with an intent to uphold the greater goal of protecting society. Street-level NCC occurs when officers plant evidence, use their “sixth sense” as opposed to establishing probable cause facts, describe the elements of a misdemeanor in such a way that it becomes a felony, and commit "testilying". All of these are police felonies based on the passion to prevent crime, a rationale that is the linchpin of noble cause corruption.
Although not all officers engage in NCC it is still pervasive and often acquiesced by other officers and administrators. Just look at the Rodney King incident as an example. Police reports put the speed King was driving at 110mph plus in a Hyundai. Officers from three police departments observed a felony in progress, the illegal beating of King, and either participated or did nothing to stop it. These officers have rationalized such willful actions as an ends-justify-the-means rationale, arguing that their necessary violations result in societal predators being incarcerated for as long as possible. However, our entire criminal justice system is based on the premise that all police officers always tell the truth. The informed populace knows this to not be true.
So, what should you do when the police attempt to or request to interview you? The first thing to do is ask for immunity and then a lawyer. The purpose for the Fifth Amendment protection against self incrimination is to protect the innocent. In Ullman v US [350 US 422 (1956)] the US Supreme Court said, "This constitutional protection must not be interpreted in a hostile or niggardly spirit. Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege. Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States." In Ohio v Reiner [532 US 17 (2001)] the US Supreme Court said, "This Court has never held, however, that the privilege is unavailable to those who claim innocence. To the contrary, the Court has emphasized that one of the Fifth Amendment's basic functions is to protect innocent persons who might otherwise be ensnared by ambiguous circumstances."
Before questioning an interviewee the police are required to read a Miranda Warning. The Miranda Warning is not a right but an explanation of a right. It came about in 1966 as a result of the decision in Miranda v Arizona. Police were able to take advantage of the fact that not everyone knows their rights by heart. In fact, it is likely that most citizens could name a few of their rights as accused criminals, but not all of them. The police's position was that if the accused, for example, spoke about a crime without knowing that they did not need to, that it was the person's fault for not invoking that right, even if he or she did not know, or did not remember, that the right was available.
Misinformation is common about police techniques and the rights of citizen's. I have seen it in many movies and still hear often that "If you ask the cop a question he has to answer truthfully." That is simply not true. Sometimes an officer may say that the questions are "off the record". There is no such thing as "off the record" when talking to a police officer. The courts have ruled that there is no misconduct in police interviewers lying to suspects to elicit information and statements obtained through deceit can be used just as readily as others. United States v. Montgomery, 555 F.3d 623 (7th Cir. 2009).
When it comes to police interviews there is no such thing as an obligation to be helpful, polite, cooperative or to attend. Keep in mind that when the Miranda Warning is read that the police are telling you their bias up front. The purpose of the interview is to gain information to use "against you in a court of law."
Although you may feel that you have nothing to hide, are innocent, haven't done anything wrong, want to help, can talk your way out of it or that cooperating will get you favour with the court, none of that can help you as much as staying silent. Consider your odds of being able to outfox the interviewer. This is someone who has been trained to conduct interviews; knows how to get a subject to relax, can lie to you with a straight face and is willing to get paid overtime until he or she gets you to admit to something just to be able to leave.
If you think you could be pulled off a basketball court, handed a set of clubs and beat Tiger Woods or get yanked off your couch, put in a racecar and beat Michael Schumacher then by all means consent to a police interview. If you don't have those abilities then don't take a chance with your freedom by consenting to a police interview. Demand immunity and then a lawyer.
If you have been accused of a crime, charged, arrested or requested to consent to an interview by police you should contact me immediately.
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©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Friday, November 27, 2009
Police Perjury - Duane Lewellen, Colfax Indiana
To be a duly authorized police officer requires taking an oath or swearing to uphold the Constitution and the laws of the state and local jurisdiction in which one is to serve.
In his paper on the oath of office Richard W. DeShon of the St. Clair County Sheriff’s Department wrote,
"Is this oath a superficial statement made by our police officers without any understanding of what they are swearing to? Do they really know what the oath requires of them? I think most police officers as well as politicians are just reading the words without any understanding."[1]
I agree with DeShon who also states, as I have throughout my years of activism, that police officers must be held to a higher standard. I, as most of you, have never taken an oath to obey every law in the jurisdiction in which we live. We are merely subject to them. Often times Police Officers place their allegiance to obey the law before God.
A typical oath that a police officer takes may be something like this;
I, (OFFICERS NAME) do solemnly swear or affirm that I will bear true faith and allegiance to, and will obey, uphold and defend the Constitution of the United States of America and the Constitution of the State of __________, and the laws and ordinances of the City of ______________. I will faithfully and impartially discharge and perform all the duties incumbent on me as a Police Officer in the Police Department of the City of _____________, so help me God.
The American Dictionary of the English Language, define an oath as:
"A solemn affirmation or declaration, made with an appeal to God for truth of what is affirmed. The appeal to God in an oath, implies that the person imprecates his vengeance and renounces his favor if the declaration is false, or if the declaration is a promise, the person invokes the vengeance of God if he should fail to fulfill it. A false oath is called perjury."
The requirement for police officers to take an oath of office is found in the United States Constitution.
“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and the several States, shall be bound by Oath or Affirmation, to support this Constitution..."
(U. S. Constitution 1787). For purposes of the US Constitution a police officer is an officer of the Executive.
One law that each police officer has sworn to uphold is that which criminalize providing false testimony. In Indiana that is as follows;
IC 35-44-2-1 - Perjury
Sec. 1. (a) A person who:
(1) makes a false, material statement under oath or affirmation, knowing the statement to be false or not believing it to be true; or
(2) has knowingly made two (2) or more material statements, in a proceeding before a court or grand jury, which are inconsistent to the degree that one (1) of them is necessarily false;
commits perjury, a Class D felony.
(b) In a prosecution under subsection (a)(2) of this section:
(1) the indictment or information need not specify which statement is actually false; and
(2) the falsity of a statement may be established sufficient for conviction, by proof that the defendant made irreconcilably contradictory statements which are material to the point in question.
So, by taking the oath to speak "the truth, the whole truth and nothing but the truth" which is administered to each affiant in a judicial proceeding an officer is subjecting himself to a charge of perjury if he makes contradictory statements.
Can we ever trust police officers to tell the truth? Let me first show you the testimony of a police officer who is a liar. Colfax Indiana Marshal Duane Lewellen lives in Thorntown Indiana [111 North Front Street] and acts as a reserve deputy for that town.
Lewellen was summoned to my home by former Thorntown Town Council President Gary Jones about a sign in my yard that read "Thorntown Council Meets Here Because They Are Full of Sh . .". The sign was accompanied by three toilets and a fiberglass boat shell. This was in response to the town's failure to keep emissions in the sewage pond within state mandated levels for the prior two years.
Upon arrival Lewellen said he was asked to request that I remove the sign. I told him that it wouldn't happen. He told me that he supports the message and my right to express it. He further told me that he didn't expect for me to remove the sign and that there was nothing illegal about it. The next day the town filed a lawsuit against me alleging that the sign violated a building code ordinance by being dangerously constructed.
At a trial on a different issue Lewellen was called to testify and the attorney for the town, Carlyle Gerde, questioned him about that sign. On 12 October 2007 Lewellen testified in that other matter. Upon cross-examination by me the following exchange occurred;
SHOWALTER: And what did you state to me was the reason for coming down there to discuss the sign?
LEWELLEN: I requested that the sign be taken down because of the profanity on it. I just asked you to remove the sign and take the display down due to the festival and the complaints we'd received.
SHOWALTER: And were the complaints in the nature of any one having been injured by that sign or feeling that they were in any threat of injury from that sign?
LEWELLEN: Not that I was aware of, no.
From this exchange you can see that in 2007 Lewellen was clear that the reason that he came to my home at 11:00pm on 23 September 2006 was because of the message on a sign and that no one had complained of the sign, which was well within the boundaries of my property, having been perceived as a danger.
Earlier I had publicly challenged Lewellen about what he said. He responded by sending this message to me:
"Jeff Woodard may have been altering the truth in court that day but I (Duane Lewellen) told the Judge evertything as I had recalled it to happen, I am sorry that you don't see it that way. I, as an unpaid police officer for the Town of Thorntown, try my best to approach every situation the same and handle every call fairly with no prejudice. I am sorry if you don't feel that way."
Now let's examine what Lewellen has to say in an affidavit filed with the United States District Court for the Southern District of Indiana in the civil rights lawsuit filed against him for conspiring to violate my civil rights.
"4. On or about 23 September 2006, while on duty as the deputy town marshal of Thorntown, I entered upon the premises of the plaintiff in this cause, Stuart Showalter, and orally requested, but did not demand, that he remove the signage display on the lawn of his premises next to the sidewalk. I did not advise Showalter that he had a right to maintain the signage display.
5. The signage display appeared to be structurally unstable and abutted a public sidewalk, including an unsightly stripped down junk motorboat, and displayed profane and defamatory statements."
It is clear that Lewellen is now changing his position as the tides of litigation require. It is now his defense that he was upholding public safety by requesting that a sign be removed. Prior to the civil rights lawsuit though it was his position that the sign offended public decency because of the message.
What really offends decency is that a police officer would not demand that an alleged dangerous structure be removed. Can you see Lewellen on New Year's Day? "Excuse me, would you please stop firing that gun into the air? The bullets could land on someone and kill them. Well, thanks for considering my request. Happy New Year."
For this reason I will be making a complaint to the US Attorney because the untruthful statement was made to the US District Court. The lawyer preparing the perjured document, Michael Parkinson, will also be complained of as a inducer of the crime. I have a billing statement that Parkinson sent to former Thorntown attorney Carlyle Gerde that shows Parkinson billed for reviewing the transcripts in which Lewellen's statements appear.
Because it has been conclusively established that Colfax Marshal Duane Lewellen provided falsified testimony under oath in this case then his testimony in any other case cannot be trusted. Therefore, anyone who has been accused of an offense by Lewellen may now challenge his accusation. If a citation was issued or a ticket paid, a plea agreement was made or a finding of guilt was returned at trial that case can now be reopened.
[1] Richard W. DeShon, Police Officers oath of office and code of ethics; a question of knowledge, March 31, 2000
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Wednesday, November 18, 2009
Indiana General Assembly Organization Day - Six child friendly bills
It what seems to almost be a secretive event because of lack of web presence about it members of the Indiana General Assembly gathered at the Indiana State House Tuesday for Organization Day.
This day is mostly ceremonial with members meeting in caucus then their respective chambers. Larger groups of students pour through the halls and various other ceremonial events take place.
House Minority Leader Brian Bosma of Indianapolis says House Republicans' first priority is taking another step toward amending property taxes to a 1% cap for home owners into the state constitution by passing a resolution. If lawmakers pass a resolution this year, voters will decide in November 2010 elections whether a property tax limit will be added to the constitution.
2010 will be a short session of the General Assembly starting on 05 January and ending no later than 14 March. Legislators meet in short session in years in which a budget is not being considered.
This year House members will be able to introduce 5 bills while Senators may introduce 10. This will be an especially tough time to get child-friendly legislation introduced while so many economic issues are still considered more important by most people.
I arrived at the State House shortly after 9:00am and started submitting requests to meet with legislators. Roaming the halls over the next fours hours was the easiest way to get these short meets with them. I was joined by some of our other advocates who each made a greeting with at least one of their local legislators.
Our agenda this year includes significant paternity related legislation. It is a reality that out-of-wedlock births are becoming increasingly common in Indiana and the statutes covering this area of law are out-of-date. This is going to be our greatest focus this upcoming session.
Paternity Affidavit
The most important is amending Indiana's Paternity Affidavit. The Indiana Child Custody and Support Advisory Committee [ICCSAC] earlier unanimously approved a paternity affidavit proposal that established that both parents would have joint legal custody and that fathers would have parenting time at the guideline minimums until a court hearing.
The Indiana Paternity Affidavit is a form, in addition to a birth certificate, that mothers and fathers voluntarily sign. Our proposal seeks to establish legal custody for both parents who sign the affidavit allowing each to make important medical decisions and other considerations. It would also establish minimum parenting time for fathers so that the can immediately start providing the child with the necessary involvement of both parents.
We have solid support for this proposal and have a few legislators who have expressed interest in being a sponsor.
Joint Legal Custody in Paternity actions
Last year the Assembly easily approved adding IC 31-14-13-2.3 (As added by P.L.95-2009, SEC.2.) which established the factors considered in making award joint legal custody. This language simply parroted what was in the dissolution of marriage section.
One section raised some concern for us. This was part four which reads, "whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody" Unlike in marriages children born out-of-wedlock may have been prevented from seeing their father and the father has no legal recourse available to him at that moment. For this reason we seek to amend section 2.3 with this language;
(4) whether the child has established:
(A) had the opportunity to establish;
(B) has established;
(C) the parents wish to establish; and
(D) whether either parent tried to thwart attempts by the other to establish,
a close and beneficial relationship with both of the persons awarded joint legal custody;
This will give courts the opportunity to examine the parties as to the reason a father has not had contact or developed a meaningful relationship with the child. The courts are currently prohibited from doing that by statute. We do not believe it is in the child's best interest to make a determination of custody without being allowed to know the reason a child has been prevented from having contact with a parent.
We have mixed support for this proposal and have a legislator who has committed to being a sponsor.
Adoption and Paternity
In July I wrote about a complicated legal opinion by the Indiana Supreme Court involving the adoption of the child of a man who filed a paternity action to contest the adoption.
In short, because of lack of congruence in the adoption and paternity statutes, the court ruled that the man had implicitly given his consent to the adoption by filing a paternity action in a court other than the adoption court. Current law provides that a man can contest an adoption by either filing a motion to the adoption court within 30 days or by filing a paternity action within 30 days.
Our proposal would add a new section to the paternity statutes which would require the paternity action to be filed in the same court as the adoption proceeding. The adoption statute would be amended to establish an alternative to objecting to the adoption by filing a paternity action in the same court. This would bring uniformity to both sections of the law.
We have solid support for this proposal and have a legislator who has expressed interest in being a sponsor.
Restricting Parenting Time
Attorney Michael Red has raised the standard of proof issue in I.C. 31-17-4 -2 which reads;
"The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent's parenting time rights unless the court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development."
ICCSAC earlier recommended that the standard be raised to "clear and convincing" rather than might. When it comes to keeping a child from having access to the support and care of a parent there should be a more stringent requirement than the person might endanger the child. Judges in Child Protective Service cases are required to use the "clear and convincing" standard before limiting a child's access to his or her parents.
Getting in a car and driving across town might endanger you because of the possibility of a collision with another vehicle. The ultra low standard of might also places no burden upon the moving party to only bring legitimate concerns to the attention of the court.
With the use of the word "might" a noncustodial parent could be required to regularly defend against malicious attacks by the custodial parent without financial consequences for bringing a frivolous action because the standard of might allows for any allegation to be adjudicated without being determined as malicious or frivolous since nearly any act "might" endanger a child.
We have strong support for this proposal and are looking for a legislator interested in being a sponsor.
Shared Parenting
We are also going to seek to have the Shared Parenting bills that have been previously introduced by Senator Kruse [SB560] which establishes a presumption for joint physical custody and Representative Pond which establishes a presumption for joint legal custody. Both bills require that judges presume that both parents are equally entitled to custody of their children. The court would then be required to issue findings as to why it deviated from that presumption.
The Rule 52 requirement that the court issue findings should reduce the amount of subsequent litigation, especially appeals, and also be beneficial to the children as clear reasons are given for custody orders.
A parent who is simply told you don't get more than the minimum time but feels he or she should have more may seek to change that. However, understanding that because of a work schedule, emotional conditions, staying out late drinking or other prior acts clearly demonstrate the need for a particular custody schedule will give parents the knowledge to make changes for the benefit of the child.
Support for this has been mixed. Those who seek to promote continuing litigation, psychological problems in children and industries that thrive on crime have been strongly opposed.
Conclusion
Those are the six pieces of legislation that we would like to have introduced and passed in this session. If you would like to help with any of this please contact Stuart Showalter.
As an organization we plan to be at the State House again on 05 January for the opening of the second session of the 116th Assembly. Organization Day for 2010 will be on Tuesday 16 November. Please plan to be to the State House by 10:00am that day if you would like to meet your local legislators and help make Indiana a more child-friendly state. You'll at least get a great lunch out of it.
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Friday, November 13, 2009
Ensuring Father's right to challenge adoption petition
In June of this year the Indiana Supreme Court issued its opinion In re Adoption of Unborn Child of B.W. in which a father had filed a paternity action to challenge the mother's intent to place the unborn child for adoption. Unfortunately, discrepancies in the language of the Indiana statutes relating to adoption and paternity proceedings led the court to believe that the biological father had irrevocably given consent to the adoption when he filed his objection, by way of a paternity action, in another court.
I wrote about this in July with an analysis of the case under the title A Bill to Modify Indiana Adoption and Paternity Law.
The question presented was whether the appellant biological father's consent to the adoption of his child was irrevocably implied when he failed to file a motion to contest in the adoption court but did take concurrent steps to establish paternity and preserve and assert his parental rights in another court. The Superior Court Judge, Monroe, found that the father's consent was irrevocably given when he failed to file a motion to contest the adoption in the adoption court.
This was based upon the language in Indiana Code § 31-19-10-1(b) reads, “A person contesting an adoption must file a motion to contest the adoption with the court not later than thirty (30) days after service of notice of the pending adoption.”
However, Indiana Code § 31-19-4-5 states that the father's consent will be irrevocably implied if he fails to file a motion to contest the adoption; or a paternity action under IC 31-14 within 30 days of receiving the notice.
The problem arose when the paternity action was filed in a different court.
Justice Boehm in concurring with the majority stated, “I hope the General Assembly will consider requiring that a putative father wishing to contest an adoption or declare paternity must file in the court in which an adoption action is pending or otherwise assure consolidation of these two proceedings to reduce the opportunity for delay and confusion, while still preserving all rights of the putative father.”
In response I drafted legislation that would bring congruence to these statutes. Based upon this Indiana State Senator Phil Boots had legislation drafted that would bring uniformity to those statutes by requiring that a paternity action be filed in the court having jurisdiction over the adoption proceedings. It would also establish that the manner in which a biological father could challenge an adoption would be to file a paternity action in the court hearing the adoption petition.
Preliminary Draft 3154 would add a new section to the Indiana Code, 31-14-5-9, which would read;
Sec. 9 If a person files a petition to establish paternity under this chapter and the child who is the subject of the petition is also the subject of an adoption proceeding under IC 31-19, the petition to establish paternity must be filed in the court that has jurisdiction over the adoption proceeding.
Preliminary Draft 3154 would amend Indiana Code, 31-19-10-1, which would then read;
(b) A person contesting an adoption must file:
(1) a motion to contest the adoption with the court; or
(2) a petition to establish paternity under IC 31-14 with the court having jurisdiction over the adoption case.
When this bill is set for hearing I will testify about the adoption of BW case and the reasons this legislation is needed. I would also like to have anyone who is the father of a child who was the subject of a petition to place the child for adoption over his objection to also testify. If you are interested in helping get this legislation passed please contact me.
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Wednesday, November 4, 2009
Why an attorney should know caselaw and be able to do math
One of the Indiana Custodial Rights Advocates activists, Don Chavis, was recently hailed into court on a "Petition for Contempt" filed by what I have throughout the proceedings referred to as one of Indiana's most incompetent attorneys. Her name is Jennifer A Bonesteel [#27520-49] who I affectionately refer to as "Bone-a-head". She represents the Respondent, Clarra Chavis, in this matter.
I have appeared in Marion County Superior Court IV twice now in anticipation of being called as a witness and to coach Don about his courtroom performance. The first time was on 01 September 2009, the date that the contempt hearing was first scheduled, and then again Tuesday after it was continued. Although never called as a witness I was pleased to have first-hand sight of this very interesting case.
Master Commissioner Deborah Shook sat as the judicial officer for the hearing. Shook is also a member of the Indiana Domestic Relations Committee whom I have met through that affiliation. I do hope that this case provides her with some insight into the silliness and abuses which take place in the family law courts.
Here is some background that will help you to understand just what is going on here. Don Chavis, the Petitioner, filed for divorce in August 2008. Clarra then immediately sought a Protective Order citing that Don had physically assaulted her although no prior complaint during the marriage had ever been made. This should sound familiar to many people.
The parties marriage was dissolved through a Decree of Dissolution of Marriage entered by the court on 03 March 2009. The relevant portion of that decree is as follows:
IT IS FURTHER ORDERED BY THE COURT that as the parties have not divided their personal property, Wife shall provide a list of property she intends to retrieve from the marital residence to the Court and to the Husband with [SIC] 14 days of the date of this Decree. Wife shall be allowed to return to the marital residence under the care and supervision of the IMPD to claim her personal property and the property of the minor child set forth on the list and/or stated generally, such as toys, make up etc.
I have some issues with the order. First it unilaterally allows one party to divide the marital property which is the responsibility of the court. There should be a provision that Husband may request a hearing if he wished to challenge any portion of the list. Second, is that it is open-ended. There should be something that says husband must make the items available within X days of the list being provided to him or further order of the court. The Wife should be required to retrieve the items within a specified amount of time.
On 23 March 2009, 20 days after the Decree was dated Clarra submitted her list to the Court and Don. Don had at that time already assembled most of her belongings into one room. He then placed her belongings on the porch within a few days of receiving the list. On 22 June 2009 Clarra retrieved her items following a phone call from Don's landlord to the law office where Ms Bonesteel works. Don was in the process of moving and the landlord had been notified by the City of Indianapolis that the porch filled with those items was a nuisance.
Since I had first met Don in April at his house and parked in his yard numerous times during the month of May since he lived near the Indy 500 track I was prepared to testify that those items were there and covered with plastic to protect them. I did notice one time that it appeared that someone had picked through the stuff which could explain why some of the items were missing.
On 06 July 2009 Ms Bonesteel filed a Petition for Contempt against Don. Clarra alleged that some of the items were missing which mostly consisted of consumables such as office supplies and toiletries. The matter was set for hearing on 01 September 2009.
Don filed a Motion to set aside the hearing in which he cited the following:
“A party may not be held in contempt for failing to comply with an ambiguous or indefinite order.” see City of Gary v. Major, 822 N.E.2d 165, 170 (Ind. 2005).
"The order allegedly violated must have been so clear and certain that there could be no question as to what a party must do, or not do, and so there could be no question regarding when the order is violated." see Indiana High School Athletic Ass’n, Inc. v. Martin, 765 N.E.2d 1238, 1241 (Ind. 2002).
That Respondent's Petition for Contempt is vexatious, without merit and is made for the purpose of harassing the Petitioner.
At the hearing on 01 September 2009 Bonesteel contended that Don should have called Clarra to inform her that the items were available and that his failure to do so placed him in contempt. She also alleged that she was sure that a list had been sent to Don within two weeks of the order and that she wouldn't have violated the order. Don argued that Bonesteel's boss had been contacted about the items being available and needing to be moved. Bonesteel then asked for a continuance which was granted to 03 November 2009.
On Tuesday Bonesteel's Boss, Gary Selig, testified that he did receive a call from a man claiming to be Don's landlord saying that the items needed to be removed. Selig states he then notified Ms Bonesteel. Don cross examined and then both sides rested since Clarra did not bother to attend the hearing. In closing Don stated that there was a protective order in place that forbids him to have direct or indirect contact with Clarra and that there is nothing in the decree that says he must contact her.
Commissioner Shook then told Don she certainly does not want him violating the protective order and would not write an order requiring him to do so. She read from Don's Motion to Vacate Hearing where he alleged that the Petition for Contempt was vexatious, without merit and made for the purpose of harassing him. She followed that with a statement that there is no finding of contempt.
I thought as Don did, that Commissioner Shook could have disposed of this matter through the pleadings since the list was clearly not provided within 14 days. But, she was quick to dispose of it at Tuesday's hearing and I think tried to send a message to Bonesteel about frivolous litigation. To that we have to say good going Commissioner Shook.
As for Bonesteel all we can say is take a remedial math class and then get in tune with the concept of caselaw. It's a great way to learn about law. Indiana Court of Appeals opinions may be read here.
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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
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©2008, 2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Saturday, October 31, 2009
Indiana Legislative Advisory Committee recommends joint legal child custody
The final meeting of 2009 for the Indiana Child Custody and Support Advisory Committee of the Indiana General Assembly got underway shortly after 10:00am and last until about 12:30. Previous meetings were held on 25 September, 02 October and 16 October. By statute the Committee is limited to meeting four times during the session.
The Committee passed two preliminary drafts after amending one. One involves great-grandparent visitation and the other seeks to modify Indiana's Paternity Affidavit. The Committee also recommended adding stronger language to the statute limiting noncustodial parents parenting time.
The Committee passed two preliminary drafts after amending one. One involves great-grandparent visitation and the other seeks to modify Indiana's Paternity Affidavit. The Committee also recommended adding stronger language to the statute limiting noncustodial parents parenting time.
The meeting opened with testimony by Cynthia Longest, Deputy Director Department of Child Services, Child Support Bureau, who provided a child support legislative gap analysis detailing the level of compliance with federal mandates. Among some of the findings are that Indiana rates 41st in the establishment and collections of child support payments, has incoming withholding orders in about 60% of cases compared to 70% nationally and that Indiana lacks some necessary definitions in regards to medical support. Ms Longest will be providing a copy of her analysis to me once it is completed. I will report on it fully then.
PD3213 - Grandparent and great grandparent visitation
This proposed legislation would grant to great-grandparents the same standing to seek visitation rights as currently stands for grandparents. However, the proposal also expands the cause of action to allow suit to be filed against intact families. The Committee approved the proposal with Judge Vorhees and Robert Bishop, Title IV-D representative, voting against the proposal as written.
Judge Vorhees felt that the proposal would potentially invite a flood of litigation from any grandparents or great-grandparents who simply has a disagreement with the parents of the children they are seeking to have visitation time with. Robert Bishop felt that an attorney fee provision should be added since most older people have greater financial resources than the parents of the child whom a visitation order is being sought against.
IC 31-17-4-2 - Modification or denial; restriction of parenting time rights
Attorney Michael Red who does not practice family law but has not seen his children in a year testified about I.C. 31-17-4 -2.
"The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent's parenting time rights unless the court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development."
Red stated that the use of the word "might" allows a custodial parent, such as his ex-wife who has engaged in a thirteen year campaign of parental alienation, to pursue litigation to deny his access to his children without any finding that he has done anything wrong.
The Committee had discussion about this and during that discussion the issue raised by Red about attorney fees was discussed. With the use of the word "might" a noncustodial parent could be required to regularly defend against malicious attacks by the custodial parent without financial consequences for bringing a frivolous action because the standard of might allows for any allegation to be adjudicated without being determined as malicious or frivolous since nearly any act "might" endanger a child.
The committee unanimously endorses adding "clear and convincing" language to statute in place of might. Since there was no specific legislation before the Committee this is only a recommendation. We will be seeking to get a sponsor for a bill to amend I.C. 31-17-4 -2.
PD3275 - Paternity affidavit modification
The meat of the meeting focused on the Indiana Paternity Affidavit and is considered to be a substantial step in the direction of making Indiana a more child-friendly state.
Robert Monday has been pushing for changes in the paternity affidavit for years. Currently the affidavit provides that when a man claims paternity of child the woman has all legal decision making authority and full physical custody.
Attorney Chris Worten provided significant testimony about the paternity affidavit during the 16 October meeting. Don Chavis of Indiana Custodial Rights Advocates provided testimony about paternity along with Robert Monday and others.
In my written materials that I provided to the Committee prior to this meeting I included the following about paternity:
The paternity affidavit should establish that both parents have joint legal custody of a newborn child the same as if they were married. There should be a presumption of physical custody at the Guideline minimums even though it would not be appropriate in some cases.
Currently there are safeguards in place that protect children from abusive parents. Under Indiana law any person is required to report suspected abuse or neglect of a child. Hospital staff are the first line of defense for a newborn child. There is a long history of involvement by Child Protective Services when a child is born to a mother who is currently abusing drugs or otherwise endangering the child. Equally there is involvement when a father is shown to be abusive to the mother or child.
I feel that it is important that all children have declared parents whether they are biological to the child. The State of Indiana should require that a mother name a father of the child when one has not come forth to voluntarily sign a paternity affidavit. This should be done with the objective in mind of involving the father in the child's life not just for the purpose of obtaining financial support and policies should reflect that.
Robert Monday asked the Committee members that if they say they support having gender neutral laws then why would they oppose mandating that both parents named on the paternity affidavit have joint legal custody. Senator Brent Waltz explained that he considers the current provision providing legal and physical custody to be an extension of the status that the mother maintained during gestation. I respectfully disagree with Senator Waltz assessment of parental responsibility though. Among married parents both have joint legal and physical custody at birth. Either parent may make medical decisions.
Representative Vanessa Summers was surprised to learn from some of us in the audience and attorney legislators that a father named on a paternity affidavit cannot take his child for medical services and make those decisions without a court order. The committee had further discussion about application of the affidavit and who would be affected.
Gregory A. DeVries, the Custodial Parent representative, mentioned that the paternity affidavit is an agreement between the parents and suggested the issue that parenting time for the father be established at the Indiana parenting Time Guidelines minimum. After additional discussion which included Judge Vorhees saying that both parents should share parenting a vote was taken.
The Committee unanimously approved the paternity affidavit proposal with an amendment that established that both parents would have joint legal custody and that fathers would have parenting time at the guideline minimums.
Now that we have the recommendations and approval of two proposals we need to start working on getting sponsors for specific legislation. I believe we have a Committee that is dedicated to making Indiana a more child-friendly state. The decision to make joint legal custody the default status for parents signing a paternity affidavit and changing the standard to restricting parenting time to be by clear and convincing evidence is substantial.
It is the eventual goal of the Indiana Custodial Rights Advocates that joint legal and physical custody be the default arrangement in all parenting actions. We would also like to see that findings and conclusions be a part of all custody orders and that the clear and convincing standard be expanded to all custody actions.
While momentum is in our favour we need let every legislator know the recommendations of the Committee and that they should support specific legislation that will be introduced in the upcoming session.
I will be meeting with legislators regularly for the remainder of the year so we have bills ready to introduce in January. If you call, send an e-mail or post a letter to your State Senator and Representative asking for support of our bills please contact me.
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©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
The Committee passed two preliminary drafts after amending one. One involves great-grandparent visitation and the other seeks to modify Indiana's Paternity Affidavit. The Committee also recommended adding stronger language to the statute limiting noncustodial parents parenting time.
The Committee passed two preliminary drafts after amending one. One involves great-grandparent visitation and the other seeks to modify Indiana's Paternity Affidavit. The Committee also recommended adding stronger language to the statute limiting noncustodial parents parenting time.
The meeting opened with testimony by Cynthia Longest, Deputy Director Department of Child Services, Child Support Bureau, who provided a child support legislative gap analysis detailing the level of compliance with federal mandates. Among some of the findings are that Indiana rates 41st in the establishment and collections of child support payments, has incoming withholding orders in about 60% of cases compared to 70% nationally and that Indiana lacks some necessary definitions in regards to medical support. Ms Longest will be providing a copy of her analysis to me once it is completed. I will report on it fully then.
PD3213 - Grandparent and great grandparent visitation
This proposed legislation would grant to great-grandparents the same standing to seek visitation rights as currently stands for grandparents. However, the proposal also expands the cause of action to allow suit to be filed against intact families. The Committee approved the proposal with Judge Vorhees and Robert Bishop, Title IV-D representative, voting against the proposal as written.
Judge Vorhees felt that the proposal would potentially invite a flood of litigation from any grandparents or great-grandparents who simply has a disagreement with the parents of the children they are seeking to have visitation time with. Robert Bishop felt that an attorney fee provision should be added since most older people have greater financial resources than the parents of the child whom a visitation order is being sought against.
IC 31-17-4-2 - Modification or denial; restriction of parenting time rights
Attorney Michael Red who does not practice family law but has not seen his children in a year testified about I.C. 31-17-4 -2.
"The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent's parenting time rights unless the court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development."
Red stated that the use of the word "might" allows a custodial parent, such as his ex-wife who has engaged in a thirteen year campaign of parental alienation, to pursue litigation to deny his access to his children without any finding that he has done anything wrong.
The Committee had discussion about this and during that discussion the issue raised by Red about attorney fees was discussed. With the use of the word "might" a noncustodial parent could be required to regularly defend against malicious attacks by the custodial parent without financial consequences for bringing a frivolous action because the standard of might allows for any allegation to be adjudicated without being determined as malicious or frivolous since nearly any act "might" endanger a child.
The committee unanimously endorses adding "clear and convincing" language to statute in place of might. Since there was no specific legislation before the Committee this is only a recommendation. We will be seeking to get a sponsor for a bill to amend I.C. 31-17-4 -2.
PD3275 - Paternity affidavit modification
The meat of the meeting focused on the Indiana Paternity Affidavit and is considered to be a substantial step in the direction of making Indiana a more child-friendly state.
Robert Monday has been pushing for changes in the paternity affidavit for years. Currently the affidavit provides that when a man claims paternity of child the woman has all legal decision making authority and full physical custody.
Attorney Chris Worten provided significant testimony about the paternity affidavit during the 16 October meeting. Don Chavis of Indiana Custodial Rights Advocates provided testimony about paternity along with Robert Monday and others.
In my written materials that I provided to the Committee prior to this meeting I included the following about paternity:
The paternity affidavit should establish that both parents have joint legal custody of a newborn child the same as if they were married. There should be a presumption of physical custody at the Guideline minimums even though it would not be appropriate in some cases.
Currently there are safeguards in place that protect children from abusive parents. Under Indiana law any person is required to report suspected abuse or neglect of a child. Hospital staff are the first line of defense for a newborn child. There is a long history of involvement by Child Protective Services when a child is born to a mother who is currently abusing drugs or otherwise endangering the child. Equally there is involvement when a father is shown to be abusive to the mother or child.
I feel that it is important that all children have declared parents whether they are biological to the child. The State of Indiana should require that a mother name a father of the child when one has not come forth to voluntarily sign a paternity affidavit. This should be done with the objective in mind of involving the father in the child's life not just for the purpose of obtaining financial support and policies should reflect that.
Robert Monday asked the Committee members that if they say they support having gender neutral laws then why would they oppose mandating that both parents named on the paternity affidavit have joint legal custody. Senator Brent Waltz explained that he considers the current provision providing legal and physical custody to be an extension of the status that the mother maintained during gestation. I respectfully disagree with Senator Waltz assessment of parental responsibility though. Among married parents both have joint legal and physical custody at birth. Either parent may make medical decisions.
Representative Vanessa Summers was surprised to learn from some of us in the audience and attorney legislators that a father named on a paternity affidavit cannot take his child for medical services and make those decisions without a court order. The committee had further discussion about application of the affidavit and who would be affected.
Gregory A. DeVries, the Custodial Parent representative, mentioned that the paternity affidavit is an agreement between the parents and suggested the issue that parenting time for the father be established at the Indiana parenting Time Guidelines minimum. After additional discussion which included Judge Vorhees saying that both parents should share parenting a vote was taken.
The Committee unanimously approved the paternity affidavit proposal with an amendment that established that both parents would have joint legal custody and that fathers would have parenting time at the guideline minimums.
Now that we have the recommendations and approval of two proposals we need to start working on getting sponsors for specific legislation. I believe we have a Committee that is dedicated to making Indiana a more child-friendly state. The decision to make joint legal custody the default status for parents signing a paternity affidavit and changing the standard to restricting parenting time to be by clear and convincing evidence is substantial.
It is the eventual goal of the Indiana Custodial Rights Advocates that joint legal and physical custody be the default arrangement in all parenting actions. We would also like to see that findings and conclusions be a part of all custody orders and that the clear and convincing standard be expanded to all custody actions.
While momentum is in our favour we need let every legislator know the recommendations of the Committee and that they should support specific legislation that will be introduced in the upcoming session.
I will be meeting with legislators regularly for the remainder of the year so we have bills ready to introduce in January. If you call, send an e-mail or post a letter to your State Senator and Representative asking for support of our bills please contact me.
Subscribe
Indiana Custodial Rights Advocates
©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
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