As I correctly noted on March 2, 2009 "The parties have until March 9 at 4:00pm to submit their proposed Findings. McClure will then rule that Meyer met his burden of providing evidence today sufficient to show that Fairfield was not indicted using her own testimony and there is no basis to dismiss the case."
Fairfield was compelled to testify before the grand jury through a grant of use immunity.
McClure acknowledged that "If a defendant demonstrates that testimony related to the prosecution was elicited pursuant to a grant of use immunity, the State then carries the heavy burden of proving that the evidence upon which the grand jury relied was derived from a legitimate source wholly independent of the Defendant's compelled testimony. Brown at 826." Thus, the State was then required to go forward and provide "by a preponderance of the evidence" that the grand jury returned an indictment based on information "derived from a legitimate source wholly independent of the Defendant's compelled testimony."
McClure acknowledged that the State did not present evidence to support the indictment of Fairfield from independent sources. McClure went on to say that "the Court cannot determine whether the grand jury relied upon Elizabeth's testimony or not when the indictment against her was issued." The state failed to meet the "heavy burden of proving that the evidence upon which the grand jury relied was derived from a legitimate source wholly independent of the Defendant's compelled testimony." It was clearly established that Fairfield had testified in the grand jury proceedings which were held in relation to the acts for which she was indicted for murder. It was also acknowledged that Fairfield was granted immunity to compel her testimony. Finally, the State did not present evidence at the hearing on Fairfield's Motion to Dismiss to show that the indictment was based upon independent evidence.
Thus, McClure did find that "sufficient evidence exists, independent of the immunized testimony of the Defendant, to support the murder indictment returned by the Boone County Grand Jury against Elizabeth Fairfield, and that the evidence and testimony admitted demonstrate that the indictment returned was based upon evidence independent of the Defendant's immunized grand jury testimony."
McClure stated that the court was without evidence to show that the indictment was based upon independent evidence which the State is required to show in order to go forward with the charge. If you are not seeing the logical connection here you are far from being alone. There is one reason why McClure ruled this way. She is prejudiced against criminal defendant's when it is not her. I was in Superior Court II telling her this on February 18, 2009 while she was violating another law. This is the judge whom I have photographs of partying with the prosecutor in this case.
So, if not having the case dismissed wasn't enough Boone County Prosecutor [party companion to McClure] Todd Meyer filed additional charges against Fairfield on Thursday March 19, 2009. These charges included "Neglect of a dependent resulting in death" as a Class B felony, "False reporting" as a Class A misdemeanor for saying she didn't murder her daughter, "Driving left of center while administering a lethal dose of painkillers to a minor" as an infraction and "J-walking to avoid apprehension by law enforcement" as a Class D felony. These carry a potential of an additional 24 years of incarceration and $15,025 in fines.
What is most interesting is that Meyer chose to violate Fairfield's due process rights by adding charges after a pre-trial conference has been held and without seeking court approval to amend the Charging Information. I can certainly understand why he wouldn't bother seeking court permission since it is already a given that McClure will approve whatever Todd wants regardless of the legality.
So now it is sit back, wait for the trial which is currently scheduled for May 4, 2009 and listen for McClure to give her final instruction to the jury, "Do what Mr Meyer has asked you to do."
www.InCRA.info
Friday, March 20, 2009
Elizabeth Fairfield "the whole shebang" trial
Wednesday, March 18, 2009
Family Law Courts: More murders to come
Although I have not previously written about this in this forum I have been warning through personal conversations and discussion boards what the Associated Press reported on yesterday. Scott Johnson, 38, of Kingsford, Michigan, told police shortly after being arrested, "I have no hope. I have no future . . . It's just been buildin' up, buildin' up, buildin' up."
In an almost verbatim account of what I have warned of, Johnson has allegedly admitted to the random killing of three teenage swimmers along the Wisconsin-Michigan border. A psychiatrist who interviewed Johnson described this as his way of getting others to feel the pain he has felt. The July 31, 2008 killings came after Johnson raped an acquaintance the previous day saying, "She rejected me and I felt insulted". Aware of the potential consequences, that is when he asked himself, "Do I go out with a bang?"
Johnson is one of many who fit the profile of those I suspect are going to create a wave of random and targeted killings across the country. Johnson had gone through a divorce after, in 2001, his wife and children went to Ohio for a wedding and never came back. A family court rewarded his wife, Theresa Johnson, for absconding with the children and depriving them of a father by giving her custody and ordering Scott to pay an amount in child support that likely exceeded his ability to pay.
Although child support payment orders have the stated objective of reflecting what a parent would have spent on the children prior to divorce the reality is that, by statute and design, the payments are to greatly exceed what was actually spent. One thing that courts also do not consider is the psychological impact on parents of losing access to their children and the motivation to provide for them.
Parents who toiled through pain and sleeplessness to earn money to provide for their children and be rewarded with the sight of their children's happiness through personal interaction are deprived of that in sole custody situations. There the motivation is lost, psychological problems may manifest themselves and earnings power, especially for the self-employed, is diminished.
Financial debt, legal problems and "perceived personal failures and affronts", as psychologist Deborah Collins wrote, contributed to Johnson's sense of demise. He said his life had hit "rock bottom." This is the point where I feel many will make the choice to "go out with a bang" just as he did. When hope is lost there is no reason to carry on. It is a biological necessity to reproduce and raise our offspring. Without that there is no meaning in life and death provides the only sense of relief. Johnson said it. "Right now I feel free. No more lies. No more bullshit," he wrote. "The way the economy is going, I am really not that bad off."
Johnson had spent five years in the military where rigorous psychological training and conditioning creates a mind that sees people not as people but simply as an 'enemy'. With our recent build-up of military forces and deployments to combat situations throughout the world a new generation of potential 'madmen' have been created. All they need is financial trouble and a loss of family along with a sense of injustice to trip them into going off. Those returning to find themselves divorced, unable to see their children and jailed for non-payment of support may be just those people.
The report notes that Johnson said, "You don't have to be crazy to do what I did, just angry." He was described as a "neat freak" by his ex-wife Theresa. Dr. Erik Knudson, a psychiatrist, described Johnson as "pleasant, charming, a good story teller." This is not a person who you would think of as the "monster" which Johnson referred to himself as in a police interview. Instead, this is just another person who has been pushed too far.
Johnson described one of his difficulties as not being able to apply for a job without an employer discovering his warrants. He is currently wanted in Ohio for failure to pay child support. Legislators, judges and prosecutors sadistically rejoice at the difficulties and agony they can impose upon another human and the pain they can cause by toying with their lives. What the fail to realize is that there will be more who will strike back with rightful indignation. No one involved in the intentional destruction of families and the deprivation of custodial rights should feel safe.
As Johnson has described and as I have told others in the past, it is everyone who does nothing to combat the problem that are facilitating it and becoming accessories to these deprivations. He planned to kill the teens as "bait" to attract police, then take out officers one by one. He wanted to inflict pain, just as he had felt, upon the families of the dead teens.
Judges, attorneys, prosecutors, police, spouses and the public at large are going to be slaughtered in future rampages. Those who do not seek to right the wrong of depriving children of their right to access to their parents are going to be on the list of the next person who decides to exact revenge on society. Who will be followed by the next, by the next, and by the next until change comes.
Ludington Daily News
www.InCRA.Info
Tuesday, March 17, 2009
Indiana fails 2009 Sunshine Week survey
The Sunshine Week 2009 Survey of State Government Information was published last week in this on-line report.
The Sunshine Week 2009 Survey of State Government Information on-line found that while more and more government records are being posted on-line, some of the most important information is being left off-line. In some cases governments are charging taxpayers to access records that they already paid for, such as death certificates.
Teams of surveyors scanned government Web sites in every U.S. state to look for 20 different types of public records. The results were released March 15, the start of Sunshine Week 2009, which runs through March 21.
The 20 categories were: death certificates, financial disclosures, audit reports, project expenditures, department of transportation projects, bridge inspection reports, fictitious registration of business names, disciplinary actions against attorneys, disciplinary actions against medical physicians, hospital inspection reports, nursing home inspection reports, child care center inspection reports, statewide school test scores, teacher certifications, school building inspections, school bus inspections, gas pump overcharges, consumer complaints against businesses, environmental citations, and campaign finance information.
The only state found to provide information on-line in all the categories surveyed was Texas. New Jersey was a close second with 18.
The state with the least information on-line was Mississippi. It posted information from only four categories on-line; DOT contracts and projects, fictitious business name registrations, statewide school test scores, and political campaign contributions and expenses. Indiana ranked next to last with seven categories available on-line. This dismal distinction was shared with three other states.
Indiana did make a step in the direction towards more open records this week. Senate Bill 232 which penalizes officials for intentional violations of Indiana's public access law as well as provides for citizens, not just media, to receive advance notice of meetings passed the Senate and now moves on to the House.
I testified about this bill in February of this year citing the need for greater public access and for measures to be put in place to assist those who are denied access to public records. I currently have a lawsuit pending against the County of Boone, the Town of Thorntown and Judge Rebecca McClure for their intentional violations of the public access law. This included McClure ordering that I am to submit request for public records from Thorntown to her for her review. This was after attorney Cy Gerde, who represents Thorntown, complained that I sought the records of stalking complaints made against a Thorntown police officer and he didn't want to be compelled by the APRA to furnish those records.
The Indiana Public Access Counselor has ruled that Gerde violated the law on numerous occasions. When asked by Judge Hughes for his basis for wanting my lawsuit dismissed Gerde simply argued that if the law was the way I wanted it then this lawsuit wouldn't be allowed. There is no need to speculate as to why Gerde doesn't want town records to be made public. One of the request which was unlawfully denied was for the warrants for payments by the town to Cy Gerde.
With attorney's like Carlyle Gerde and judges like Rebecca McClure intentionally violating the public access laws it is going to take pro-active work on the part of public officials to make the records available before a request needs to be made. Don't expect change to come to Indiana anytime soon.
www.incra.info
Monday, March 16, 2009
Sex Offender Registration: good for litigation, bad for children
Yesterday, Tracy Breton a staff writer for The Providence Journal wrote about the difficulties of implementing a federal sexual offender registration law. In 2006, Congress enacted legislation to standardize the way states classify and register sex offenders and to make it easier for the public to learn about an offender’s presence in their communities.
Under the Sex Offender Registration and Notification Act (SORNA), states and federally recognized Indian tribes are required to set up centralized computer banks to track people convicted of sex crimes. The data is to include detailed information about each of them, along with a photograph which will be placed on a Web site that anyone can access.
The intent of the law is to reduce the number of sex crimes committed through the monitoring of sex offenders as they move from neighborhood to neighborhood or state to state. It is to establish an easy way for the public to find out if there’s a sex offender living nearby. A highlight of the basis argued by proponents of the law for its passage is that it would protect children from harmful sex predators. If you ever want to get anything passed that won't do any good and may actually harm children just say it is for their protection.
When a proposal is not fully vetted and passed on a whim, usually as a knee-jerk reaction to some immediate event, then what you usually get is an unintended consequence. This is where the necessity for people who have logic and analytical skills come in. There are going to be unintended consequences to SORNA and, yes, likely more harm caused to children.
Here are a two quotes from Breton's story. "Last week, a veteran sex crimes prosecutor in Louisiana told a subcommittee of the House Judiciary Committee in Washington that implementing the law might actually result in fewer convictions of criminals who prey on young children because it will be hard to get offenders to plead guilty if they know they will be required to register on a Web site as a sex offender for the rest of their lives." "Already, cash-strapped California has informed the Justice Department that it will not implement SORNA even though it will mean a loss of about $2 million in federal funds this year. The reason is clear: it is estimated that it would cost California more than $59 million to implement everything mandated by the new law."
A flood of lawsuits have been filed around the country by defense lawyers representing sex offenders who were not required, as part of their original sentence, to register but who are now being told they must do so because of SORNA. Some completed sentences 30 or 40 years ago.
One of the reasons I have long opposed these types of public registration efforts is that statistics show that children are most often sexually assaulted by a family member or acquaintance. If people need a sex offender registry to inform them that a friend or family member is molesting their child then they have a serious parenting problem that will not be cured by a registry. These laws provide a false sense of security and actually promote putting offenders into situations where they will be likely to repeat offenses. By chasing prior offenders out of communities, forcing them into unemployment and publicly humiliating them you are likely to see them retreat from treatment that has been the best deterrent to recidivism.
These registries DO NOT let people know where sex offenders in their community live. The only information provided by these registries is where people who were convicted of sex crimes, who have registered, live or work. Proponents will be quick to point out that these are only tools that people can use but we know from experience that most people rely solely on these registries. However, the best option is rarely chosen by the public as we have seen in personal safety.
Seat belt and safety harnesses are a perfect example. I have had safety harnesses installed in some of my vehicles because seat belts aren't safe. This is not what the industry would have you believe though. The slogan "seat belts save lives" may be true but what they do not tell you is "seat belts are not safe". Why do we commonly have a two strap single point restraint in our vehicles when it is commonly known that the 5 strap, 5 point harness is the safest? Because people will not take the 30 seconds to prevent the disabling injuries caused by a single point restraint. How can we then expect them to take the time to actually investigate the people who have access to their children.
Laws like this may actually lead to fewer convictions. In Boone County Indiana prosecutor Todd Meyer runs a pre-packaged, assembly-line, fast-food type of criminal prosecution process where charges are filed, plea bargains to probation are offered and the case is quickly disposed of. Most defendants who demand jury trials get their charges dropped. A law mandating that an offender register for life is going to lead to more demands for jury trials rather than accepting the three years of probation. Prosecutors weary of having a poor conviction rate are not going to press these charges.
I always encourage everyone to demand a jury trial in every case. Prosecutors should be held accountable to ensuring that society is protected by only pursuing legitimate criminal charges rather than only those where a conviction seems likely assured. Meyer recently offered two years house arrest to a defendant accused of murdering a disabled child by poisoning her. The case of the accidental drug overdose is now set for trial. While he is busy wasting taxpayer money and court time there could be sex offenders not being prosecuted because the difficult to prove cases do not lead to high conviction rates.
This is not about saving children. This smoke screen is nothing less than a way for the federal government to interfere in state's rights and create litigation on a mass production scale that will keep lawyers for both sides very busy for years to come. In the meantime more children will be placed at risk and more taxpayer funds will be dumped down endless black holes that benefit no one but the suppliers receiving the contracts.
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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.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions. 
Sunday, March 15, 2009
Custody fight gets Congressional Attention
When US President Barack Obama and Brasilian President Luiz Inacio Lula da Silva a major issue among their discussion was the custody of Sean Goldman. He is the son of a now deceased woman, Bruna Bianchi who moved with him from New Jersey to Rio de Janeiro four years ago without his father's consent.
The boy, who is eight years of age, was left in the care of the mother's second husband who is a member of a prominent family of lawyers and judges. The case is currently in before a federal court in Brasil awaiting a decision as to whether the abduction violated the Hague Abduction Convention. The treaty seeks to determine whether children have been unlawfully removed from their country of habitual residence.
The treaty, as most custody laws, has exceptions that allow for the child to remain in the custody of an abductor. The exception allows for a child to remain in the custody of an abductor if the child has become settled in the home of the abductor. This is based upon the "best interest of the child" standard that allows for children to often remain in the custody of a parent although an appeals court rules that the child was wrongfully placed.
Ironically, children that have been well settled and adjusted to their home life including most of their educational and friendships connections along with community bonds have been uprooted and removed to parents with little or no personal interaction with them during that time.
One such case is that of Shawn Hornbeck and Ben Ownby were rescued after both were abducted by Michael Devlin. Shawn Hornbeck, now 16, was abducted when he was just 11 years of age and held for over four years. Ownby escaped after just four days of captivity. Hornbeck had been seen by neighbors spending time biking on his own and hanging out with friends, apparently unwatched by Devlin, in Kirkwood, a St. Louis suburb.
It wasn't until police interviewed Devlin about his white truck that matched the description of the vehicle used in the Ownby abduction that Devlin became a suspect. Police soon after found the boys at Devlin's apartment.
If court's are regularly ruling that children who have been abducted by a parent involved in a custody dispute can remain with that parent then why was Hornbeck removed? He was living with Devlin as "his son" and was seen in the community on his own and had friends and connections to the community. If it is in the best interest of many children to be left in the custody of their parental abductors even though they have sought to be with their parent who lawfully has custody then why is the standard different for stranger abductions?
Can it be said that Hornbeck had not made an adjustment to his community and the life he was living with Devlin? I find it ironic that the judge who likely sits in judgment of Devlin and has decided that Hornbeck be returned to his lawful parents has probably not returned other children. Now we have a federal court in Brasil who may do the same.
Our legislators in the US House have adopted House Resolution 125 by U.S. Rep. Christopher Smith, a New Jersey Republican with a long history of intervening in far-flung humanitarian cases, by a 418-0 vote. The resolution calls for Brasil to return the child to Goldman in the United States. Had Sean Goldman been taken from the arms of a loving parent by another parent in the United States then there would be no outpouring of support by our hypocritical representatives in Washington who actually advocate the destruction of American families.
Monday, March 9, 2009
Minnesota Shared Parenting Report - Part X Public Participation
Minnesota Child Custody Presumption Study Group hearing on October 27, 2008.
List of Speakers at Public Listening Session, Name Organizational Affiliation (if any), Focus of Testimony
1. Julie Moylan, Domestic violence
2. Joan Lucas, American Academy of Matrimonial Lawyers, Best interests
3. Lance Johnson, Child Speak, Best interests
4. John Mazzitelli, Best interests
5. Tom James, Domestic violence
6. Donna Dunn, MN Coalition Against Sexual Assault, Best interests
7. Les Jobst, Fathers 4 Justice Fathers
8. Leigh Ann Olson, MN Coalition for Battered Women, Mothers
9. Todd Harris, Center for Parental Responsibility, Fathers
10. Kathrun Eagle, Domestic Abuse Intervention Programs, Domestic violence
11. Quincy Boyle, and John Corliss, Employment Action Center, Diverse communities
12. Charlie Hurd, National Coalition of Free Men, Best interests
13. Joseph Field, Private attorney, Fathers
14. Troy Molde and Nancy Lazarayn, Best interests
15. Tami Peterson, MSBA Family Law Section, Best interests
Written submission were also received by the Study Group. I have highlighted a few of these here.
Katherine Eagle of the Domestic Violence Response Team Family Crimes Unit stated that it is her belief that if one parent objects to the court considering both parents to be entitled to equal consideration before the court then the court should NOT presume that both parents should be entitled to maintain a relationship with his or her child and await hearing evidence to the contrary.
Thomas P. Kelly, Senior Assistant County Attorney, says that in the "vast majority of cases the male parent shows tragically little interest in their child beyond the strictly financial issue". This guy must be a real hater of men. It clearly makes one wonder what a man has done to him or if he did something to his own child and now has a self-loathing for fathers. I play on a real football team made up of fathers who are coaches or have children who play in our Youth Soccer Association. I have heard the term 'soccer mom' and even seen the stickers on mini vans but I suspect that once the season starts again this year we will see more fathers than mothers out there once again. Thomas Kelly may find this unbelievable but they will actually be coaching, cheering or otherwise supporting the children by being there, not by writing a check.
Glen A Norton a father of two and an attorney who has been in practice since 1986 opposes a presumption that a child is entitled to continue having access to both parents because he says "a presumption that parents should have nearly equal time erroneously focuses upon parents."
Bernard Borene who has practiced family law for 13 years and been a judge for over 24 years says that he is "not in favor of a presumption of joint physical custody". He does not believe that children should be entitled to a presumption that they may continue their relationship with both parents.
Kathleen M. Newman an attorney worries that a presumption that children maintain a relationship with both parents would have an affect on child support issues. She believes that the due process presumption of equality is not appropriate unless both parents first agree to equal joint custody. I believe that Kathleen was also an opponent of integrating the school unless all the white people first agreed to it.
The most biased and amazing letter came from Judge Thomas G. McCarthy who stated that the answer to the question of should parties be entitled to equal consideration for child custody upon the first appearance in the courtroom is "Clearly and unequivocally, NO."
Many other people who reap huge financial windfalls from destroying the lives of children, especially judges, also continued with their expression of opposition that a court, upon first viewing of the parents, should consider that the children are entitled to maintain a relationship with each parent.
On page 157 of the report the letters in support of a presumption that children maintain a relationship with both parents begins. Many of these letter writers were school teachers, social workers or those otherwise intimately involved with children of separated parents on a regular basis. There were also some attorneys, a judge and a state representative in addition to numerous parents. Most of the supporters of a presumption favoring children's right to have access to both parents were women but not those who profit from the destruction of families.
There was significant consideration for the legal implications and rights of children expressed by most of the favorable letter writers.
The last section is a collection of letters than neither showed favor or disfavor to the due process presumption of equality.
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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.
Sunday, March 8, 2009
House Bill 1151 Passed the House - Joint Custody
This legislative session did not go well for us. Although we had numerous custody bills introduced we were unable to get them set for hearings and out of committee. We have secured commitments that most will be introduced next year. One bright spot has been the passage of Indiana House Bill 1151. HB1151, Authored by Representative GiaQuinta, was introduced on 14 January 2009.
The Synopsis of the bill is as follows:
Joint legal custody in paternity determinations. Allows a court to award joint legal custody of a child following a determination of paternity. Provides that an award of joint legal custody does not require an equal division of physical custody of the child. Establishes factors for the court to consider in determining whether to grant joint legal custody.
Much of the language in this bill I do find to be duplicious of other statutes but it now makes it applicable to paternity determinations. The factors considered are the usual and I have the usual opposition to some.
(4) whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody;
This one can practically negate the intent of the bill. A man just learns that a child born years ago which he was never told about is his. Now a court is suppose to use his past relationship with the child to determine if he should be allowed to help direct the upbringing of his child. This is like saying we are lower taxes and then adding user fees for everything.
(5) whether the persons awarded joint legal custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so;
I have never found this to be relevant to deciding medical procedures, schooling or other aspects of legal custody. Through communication technology medical staff and both parents can meet in virtual conference rooms regardless of where they are in the world. Signatures can be instantly transmitted on-line and nearly every school has a website that would allow a parent in a remote location to gather necessary information for making a determination.
On 20 February 2009 Representatives Bell, Yarde and VanDenburgh added themselves as coauthors. We are pleased to see Rep. Matt Bell supporting another Shared Parenting bill.
On 25 February 2009 The bill received its third reading and a vote was taken where it passed by 99-0. It was then referred to the Senate where the Senate Sponsor was Senator Bray.
On 03 March 2009 The bill received its first reading and was referred to the Committee on Judiciary. The complete bill is below.
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 2008 Regular Session of the General Assembly.
HOUSE BILL No. 1511
A BILL FOR AN ACT to amend the Indiana Code concerning family law and juvenile law.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 31-9-2-67; (09)HB1511.1.1. --> SECTION 1. IC 31-9-2-67 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 67. "Joint legal custody", for purposes of IC 31-14-13, IC 31-17-2-13, IC 31-17-2-14, and IC 31-17-2-15, means that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child's upbringing, including the child's education, health care, and religious training.
SOURCE: IC 31-14-13-2.3; (09)HB1511.1.2. --> SECTION 2. IC 31-14-13-2.3 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 2.3. (a) In a proceeding to which this chapter applies, the court may award legal custody of a child jointly if the court finds that an award of joint legal custody would be in the best interest of the child.
(b) An award of joint legal custody under this section does not require an equal division of physical custody of the child.
(c) In determining whether an award of joint legal custody under this section would be in the best interest of the child, the court shall consider it a matter of primary, but not determinative, importance that the persons awarded joint legal custody have agreed to an award of joint legal custody. The court shall also consider:
(1) the fitness and suitability of each of the persons awarded joint legal custody;
(2) whether the persons awarded joint legal custody are willing and able to communicate and cooperate in advancing the child's welfare;
(3) the wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age;
(4) whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody;
(5) whether the persons awarded joint legal custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so;
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint legal custody; and
(7) whether there is a pattern of domestic or family violence.
SOURCE: IC 31-14-13-4; (09)HB1511.1.3. --> SECTION 3. IC 31-14-13-4 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 4. Except as otherwise provided in an order by a court, the custodial parent may determine the child's upbringing, which includes education, health care, and religious training, unless the court determines that the best interests of the child require a limitation on this authority.
visit www.incra.info for more child custody information
Monday, March 2, 2009
State v Fairfield - Motion to Dismiss Murder Charge
Fairfield's Motion to Dismiss Denied
Today the court heard arguments in the State of Indiana v Fairfield relating to the prosecution's request for discovery and the defense's Motion to Dismiss. Elizabeth Fairfield was charged with murder over a year after her daughter, Brittany, died of an accidental overdose of prescription pain killers.
Motion for Discovery
Prosecutor Todd Meyer had made a motion for production of all records held by Elizabeth Fairfield's physician relating to their discussions about her prescription for Tramidol. Presenting the case for the defense was Jake Bradley who argued that the request should be denied because it was overly broad, was duplicious of a previous request to Wal-Mart, which was granted, and, that Meyer was seeking to completely "obliterate the doctor-client privilege."
Meyer countered that the request was not duplicitive of that which sought the prescription records from Wal-Mart but was carefully tailored to seek records of only the notes of the doctor citing the reason why Fairfield wanted the prescription refilled. He further stated that it was from the time immediately preceding and the date the prescription was called in, four days after Brittany died.
Bradley reiterated his objection that the request was overly broad and violated the doctor-client privilege.
McClure read from Meyer's written motion noting that it "does not give a time limit" and asks for "any and all records" from the doctor concerning that client, Fairfield. Meyer conceded that he must have misspoke and then stated that it is his intention to see all notes taken by the doctor about what was discussed with his client while she was a patient. This is what is commonly referred to as a 'phishing expedition' where one does not know what it is they will find but hope to find something useful.
Motion to Dismiss
The defense's Motion to Dismiss was presented by lead counsel Tom Farlow who again noted that not one of the prosecution witnesses has publicly testified that he or she knew of any evidence that Elizabeth Fairfield knowingly or intentionally caused the death of her child. This included police investigators assigned to the case.
Farlow's argument in favor of dismissing the case was that Fairfield's right against self-incrimination was violated. Fairfield was subpoenaed to testify before the grand jury who ultimately indicted her. She invoked her Fifth Amendment right to remain silent but, at the request of Meyer, was ordered by the judge to testify. Farlow cited caselaw relating to the burden of the prosecutor to show that the indictment was obtained through evidence independent of the defendant who had invoked the right to remain silent.
Meyer countered that the defense had not presented any evidence to show that the indictment was obtained by using Fairfield's testimony. He said the defense asking his witnesses whether they had knowledge of Fairfield's guilt was inadmissible. That their personal feelings are irrelevant and cases such as this depend upon and rely upon circumstantial evidence that wouldn't be know by witnesses. This includes the police and prosecution investigators.
However, as Farlow noted, once we raise the issue of the Fifth Amendment claim, the law is that the State must present the balance of the testimony to show that the State presented sufficient evidence and that Fairfield's testimony was not considered by the grand jury to indict her. Procedurally what should have occurred was the burden of proof shifts to the State which must then present evidence which was used to indict. That it did not.
At the Let to Bail hearing in February the defense presented witnesses where every single one testified that they knew of no evidence that Elizabeth Fairfield knowingly or intentionally caused the death of her child. Farlow argued that since we don't know which ones testified at the grand jury we can only assume it was Fairfield's testimony that led to her indictment.
Meyer fought back stating that the defense had not presented evidence of what was heard by the grand jury. He also contended that the State was not held to the burden of beyond a reasonable doubt at the Let to Bail hearing and thus that witnesses testimony is not applicable to indictment.
Bradley interjected with his contention that the indictment was fatally flawed because it used testimony obtained in violation of Fairfield's right to remain silent. Farlow stated that Todd presented no evidence to show what testimony was used to indict Fairfield and is attempting to shift the burden to the defendant.
Meyer stated that he was not going to waste the court's time bringing in witnesses to try to prove the defendant's guilt. Meyer contends that proof of guilt is an unnecessary inconvenience that does not need to be considered in convicting a defendant.
The parties have until March 9 at 4:00pm to submit their proposed Findings. McClure will then rule that Meyer met his burden of providing evidence today sufficient to show that Fairfield was not indicted using her own testimony and there is no basis to dismiss the case.
The trial is currently set for May 4, 2009.
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