This story was posted as a comment to my previous post about demanding a jury trial.
My first posting about demanding a jury trial may be viewed here.
While at a meeting that evening I had a discussion about the supposed statutes criminalizing non compliance with child support payment orders. I raised the issue of if you have two of the 25 defendants scheduled for a jury trial that week actually follow through with their jury demand who do think goes, the guy behind on support payments or the one accused of raping a child? Thus, given the choice between prosecuting real crimes or trying to pad their pockets by skimming support payments, what do you think will happen. My counter-part responded that they will simply double the courts and prosecutors.
That would seem to be a logical approach. We don't want to set criminals loose upon society just because we don't have enough current capacity to manage them. But, that is precisely what happens. The Marion County Jail has been regularly releasing inmates for years because of overcrowding. Is Marion County building more jail cells or adding courts and prosecutors to speed the process? Not at a rate exceeding the caseload or population growth. There comes a point where society will only tolerate spending so much money on the scam known as the 'war on drugs'.
Marion County is likely more recognizable to you as Indianapolis. Like any large city they will have their problems. A problem encountered last year was that judges were considering issuing bench warrants for potential jurors that did not appear. Some trials were unable to proceed because of a lack of jurors. This was with only a very small percentage of cases being resolved through jury trial. Put aside the limited number of judges, courtrooms, prosecutors and public defenders. There still must be enough jurors.
Under Criminal Rule 4(C) the prosecution must take a defendant to trial within one year of the arrest or charging of the offense. There are certain exceptions to the time limit. Any delay attributed to the defendant will not count against the one year requirement. So, it is important for defendants to be prepared for trial and not ask for a continuance because it is unlikely that the prosecutor will be ready.
Do not be so quick to think it is only a logistics problem. It appears that the public has a limited tolerance for unbridled spending to support the fanciful extravagances of prosecutor's. Maybe it was Mike Nifong and his malicious prosecution against the Duke University lacrosse players in a fabricated rape case. Spending tens of thousands of dollars to manufacture a case before ever speaking to the alleged 'victim' did not go over well with many people. In fact, Nifong was sent to jail for the offense.
Back in Marion County in 2007 prosecutor Carl Brizzi made a big public showing of his top ten deadbeat dads. At the top of the list stood Eric D Walker. This loving and caring father was accused of severely neglecting his children. Brizzi had all his ducks in a row. He had court orders, child support payment history and the purported statute he would prosecute Walker under. What Brizzi didn't have was a jury who was going to allow the State to invade the sanctity of the family. The jury determined that Walker should be able to provide care for his children as he and the mother saw fit. Brizzi's waste of taxpayer money was monumental. The not guilty verdict of the jury sent a clear message to all criminal defendants that the citizens will only allow a limited amount of governmental tyranny.
Society is starting to see that prosecutors are not much unlike the people they seek to prosecute. There is a difference though in that prosecutors have taken an oath to abide by and uphold the law. As Nifong and others in Indiana have shown recently prosecutors can't be trusted any more than the defendants they go into battle against.
Police misconduct is being revealed more often with the use of audio/video recordings. In this incident a group of police officers manufacturers a case against a woman after the officer collided with her car. An Indianapolis officer plead guilty to having 'forced sex' [rape] in his police car, while on duty, with a woman wanted on a warrant. Apparently crime by officers is so prevalent that the Metro PD has only placed him on suspension while considering termination.
Police officers who have long abused their position of authority are now being seen for such conduct on a regular basis and demonstrates that no more weight should be given to an officers testimony than that of a criminal defendant.
Now I find out that the United States Supreme Court has given criminal defendants another due process consideration. In a 5-4 Melendez-Diaz v. Massachusetts decision, the high court said that lab reports served as “witnesses” for the prosecution. Justice Antonin Scalia reasoned that since the 6th Amendment gives defendants a right to "be confronted with the witnesses against him," that drug and DUI defendants among others were "entitled to be confronted with the [lab] analysts at trial." Now the prosecution must make a lab technician available to testify in person if the defendant demands it.
As a result, some cases already have been dismissed. The four dissenters readily admit to this jury demand strategy overburdening the courts. They said the ruling had "vast potential to disrupt" the criminal courts. They also said it gave "a great windfall" to defendants, some of whom could have their cases dismissed because a lab technician was not available to testify.
Clearly, criminal defendants can overwhelm the criminal courts system if they choose. If you are a criminal defendant demand a jury trial. If you are involved in any case involving an analysis report then call the reports author as a witness. If you are selected to sit on a jury demand that the case be proven and always invoke your right to veto the law if you chose.
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.
Wednesday, July 29, 2009
This story was posted as a comment to my previous post about demanding a jury trial.
Tuesday, July 28, 2009
This is not a new case but one that is worth mentioning because of the significant impact it has. The Indiana Court of Appeals in the published opinion of Higginbotham v Higginbotham upheld the denial of a child's visitation rights to her father until she showed “vast improvement in her scholastics”.
Pursuant to the parties’ agreement, which was approved by the dissolution court, Kathryn was to have primary physical custody of their daughter,K.H., who was age 10 at the time and the parties were to share joint legal custody.
Robert Higginbotham out of concern for his daughter filed his Verified Petition to Modify Custody, alleging that there had been substantial changes in circumstances that were not in her best interests. The parties agreed to a custody evaluation that was performed by Dr. John C. Ehrmann, Jr., who recommended that custody remain the same with the addition of the appointment of a parenting coordinator. The parties agreed with the evaluators findings and stipulated to its admission.
The trial court found that the most recent report card of K.H. reflected below average grades in Science, Math, and Social Studies, and she did not pass the portion of ISTEP testing relating to English and Language Arts. Kathryn Higginbotham placed blame for this on Robert saying that their child returns from her Wednesday night visitations with Robert with homework that is incomplete or that needs to be redone.
The trial court issued its order on the petition by giving full physical and legal custody of K.H. to Kathryn. The court further eliminated K.H.'s midweek visitation with her father and conditioning its resumption upon her showing a “vast improvement in her scholastics.”
Finding no error, the court affirmed. Opinion by Judge Baker with Robb and Kirsch concurring.
There are a few problems I have with the dangerous precedent that this case sets. I have not found cases in which Higginbotham has been cited and I hope I never do. It clearly goes against logic to say that a child's “below average grades in Science, Math, and Social Studies, and [that] she did not pass the portion of ISTEP testing relating to English and Language Arts” are a direct result of her visitation time with her father on Wednesday evenings.
I don't think I am alone when I say that the basis for scholastic results are dependent upon much, much more than three or four hours on one week night. Many educational sites recommend such things for improving grades as:
~ Talking to teachers
~ Reviewing class placement
~ Getting parents involved with teachers
~ Using peer study groups
~ Sleeping and eating well prior to taking tests
However, I found no information that suggested cutting off contact between a parent and a child. Quite to the contrary involving the parents with the educational process was highly encouraged. An intelligent judge would have instead crafted a visitation order that may have involved some type of school participation by both parents.
This opinion had nothing to do with the best interest of a child. Punishing a child by cutting off the very limited contact that she already had with her father until she raises her grades is a travesty. This opinion is based more upon the Court's long-held opinion that men are the root of all problems in a child's life. If Baker, Robb and Kirsch had any compassion for children and concern for their best interest then they would have remanded this case to the trial court, based upon an abuse of discretion, and instructed the trial court to craft a visitation order in the child's best interest.
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.
Sunday, July 26, 2009
With government satellites, GPS and surveillance cameras watching your every move the last thing you need is your personal information and habits being recorded and brought into court to be used against you. I recently posted information here about Electronic Tracking and the use of Store Loyalty Cards being introduced into evidence in child custody cases.
Well now you have one more thing to be concerned about. Fortunately, this is one that you have almost complete control over. Using social networking sites can be a convenient and fun way to keep friends and family updated about your activities. However, it can also be used against you in a child custody or child support proceeding.
The games you play, photos you post, questionnaires you answer, notes you send and your status updates can provide a treasure trove of ammunition. Those wishing to question your integrity or, more importantly, parenting skills or fitness to be the custodian of your children can use this against you in court. Therefore, it is important to limit what you put out there for the public to see. Simply making your page private will not save you. To illustrate what I am talking about I will use "Bob" as an example.
Bob is a NCP who has been hammered with child support payments and has fallen significantly behind. Bob was forced to move across the country after losing his job in the community where his children lived because his home community to longer offered the high paying position he needed to maintain those payments.
Now Bob wants to have the children come live with him and is seeking a modification of custody. Bob was recently arrested on an alcohol related offense but the charge was dismissed following his demand for a jury trial. Come back and take a look at this posting about demanding jury trials. The strategy explained there paid off for Bob.
I have been helping Bob with such things as seeking a support modification while he was unemployed and with his notice of intent to relocate. When it comes to child custody issues I only advocate for the position I believe will be in the child's best interest. So, before seeking a custody modification Bob must first work on some personal issues.
Here are two status updates that Bob posted on a social networking site.
"Thanks for all of the Birthday wishes....I would have a drink for each one of you.....But I would never see my NEXT birthday.....(Yes...I'll admit...I'm....Slowing....down.....a little....)”
I am happy to see that Bob is slowing down with the drinking and has made further progress since that time. I don't want to see this on his page though. It is an admission that he is a heavy drinker. Not long after that update came this one-
“Takes life with a grain of salt... A wedge of lime...and a shot of tequila..”
Oh Bob, am I still not getting through to you? My reply to that one did. Bob's updates now are much more about family and his children. His ex-wife hasn't been oblivious to his lifestyle though. She notes, "You have two mutually exclusive relationships going on right now, your seeming enamor with the 'Margaritaville' lifestyle or being of some use to your children, your family and the public at large. I would think you have got to be getting tired of bar nonsense and excessive drinking that has yet again reared it's destructive head in your life for too many times to count now." She went on to mention the arrest and some other issues.
Bob is not only cleaning up his public persona but also himself. Projecting a father-of-the-year lifestyle on social networking sites is not a replacement for being a beneficial parent to your children, but it's not going to come back and haunt you at a custody hearing either.
In general you do not want to put photos or comments on your social networking sites that you wouldn't want displayed or read in court. This includes things like drinking parties, dangerous activities around children and bragging about luxurious purchases or vacations. Also, do not put comments about the other parent, the lawyers or judges on these sites while you are going through the custody battle.
The mining of social networking site information goes much deeper than what I have presented here. If you need coaching for your court appearance or how to ensure you are viewed in the best light please do not hesitate to contact me.
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.
Saturday, July 25, 2009
Domestic Violence is a crime and quite simply it is wrong. I must take issue with those who would protest that there need be no special distinction for battery committed against someone living in the home or otherwise intimately connected.
Battery is codified by IC 35-42-2-1 which essentially calls it any offensive touching. Patrons in a bar sometimes cross eyes in a wrong manner or argue over sports teams. Combine this with a little alcohol and you may have a situation where one persons pushes, punches or otherwise 'batters' another. One can tuck tail and run, push back or simply acknowledge the disagreement and let it be water under the bridge. Usually there are others who will step in to assure that it does not escalate to an unmanageable point.
Domestic battery is different. This is a position where I lose support from some of those in the Father's Rights movement but one which I am still left committed to. Domestic battery is a violation not only of the body but of the bonds of trust that hold two people together or more if they have children. Intimate partnerships are built upon trust. Your deepest secrets, your fears, your desires and all the other feelings that you hold close and personal are shared with that person. The children trust that their parents will love, honour and respect each other.
It is the violation of this trust that I feel elevates the offense level in domestic violence situations. We find similar statutory enhancements in crimes such as sexual misconduct with a minor if the perpetrator was a person in a position of trust, such as a school teacher. This is the same reasoning I use when I feel crimes by police should receive charging or sentencing enhancements; they violated a trust.
Ironic at first is that I was recently attacked by the feminazi crowd after presenting an anecdote of how restraining orders being used in child custody situations can lead to death. These women are so vengeful that they ignore assisting and instead spew their hatred towards another domestic violence victim trying to provide helpful advice just because he is a man. Whenever I am attacked by the feminazi crowd I know I have hit upon something worthy and legitimate. This is a group of man-hating women that are so consumed with anger and self-loathing that they are unable to function within the realm of the civilized familial structure. It is for this reason that true feminism rejects these antagonizers.
The point of my posting on that subject was that a piece of paper will not save a person's life and, as in my situation, it may be best and safer to not inflame the situation. Instead the feminazis say I was blaming the mother for her own death. When I was going through a divorce I was forced to wear body armour, sometimes traveled with a body guard, installed a surveillance system and altered my routines. My ex-wife had on numerous occasions threatened to use her gun to kill me or our son.
I did call the police one time when she entered the home of our son and I, while armed, and proceeded to go into a violent tirade. I did not seek a protective order for that. She is one person that you do not want to antagonize. Because of her psychiatric conditions and mood stabilizers that she takes, or sometimes refused to take, the slightest change could set her off. I found it better to take a defensive position and feel it may have saved my life.
One such feminazi is Claudine Dombrowski who just doesn't get it. By her own admission she has been denied custody of her children even after presenting evidence of severe battery upon her face and body. In a world where women who make false allegations are regularly awarded custody of their children based upon that false allegation we must wonder what else someone must have done to override the photographic evidence of battery which she shows.
I submit that it is the dangerous attitude which she expresses in her writings and that which she shares among her ultra-feminazi clique. No child should be forced to endure exposure to a person expressing such hatred not only for men but what she must have for herself.
Dombrowski does not present to us a full record of how she came to sustain her injuries. What we do know is that it did not result in her getting custody of her children and that is troubling. I don't think that anyone should have to suffer the types and degree of injuries which she did but we are not informed as to the possibility that these may have been from defensive actions by someone else or that the fight was mutual.
I propose that the real harm comes from the false allegations of domestic violence and falsified petitions for protective orders, especially those which involve partners who have children. Feelings of hurt, bruises, cuts and even broken bones can heal. What is the treatment or cure for the violation of trust or breaking of bonds that occur between millions of children and their parents? Children are not blind to family dynamics and positions of authority and control. They can discern who the manipulator is and who the victim is.
You can't just take it back when a child has been denied access to one parent for years based upon a lie. You can't simply turn back on the trust that was shut off because the child can no longer believe the parent whom he is left to live with. Children know, children feel and children will react. It is the way they react to the denial of a parent, not for their protection but based upon a lie, that results in harm.
What effect do these false allegations have on the psyche of society at large? Do we begin to view accusations of domestic violence with skepticism? Do we start to view true victims as nothing more than lying, money-hungry, vindictive manipulators? That is the danger we face and the harm that these false accusers bring to the true victims. What does the prospective juror who had a brother falsely accused do? Does he speak up about it during voir dire and get excused from service or does he remain silent while thinking 'I will show these bitches and acquit this guy'?
Judge Judy Scheindlin of the popular civil litigation television show Judge Judy confronted a young woman on the program who had accused her boyfriend of domestic violence. The video of this episode can be seen here. Judge Judy told this girl that she knew her game. That she caught her boyfriend with another girl after she had left him, wanted revenge and falsely accused him of domestic violence. The girl protested that it was “the right thing to do” and that Judge Judy was crazy. Unfortunately this is a common occurrence. Not common in that a judge sees through the charade but that the false accusation is made for revenge or other motives.
What do we as a society do to hold these false accusers accountable? I feel our first step should be to personally discourage the false reporting of domestic violence. The phrase 'You go girl' should be replaced with 'You should be ashamed girl' for women who use false allegations to deny their children access to the father. The idea that women need comfort and support from others while going through divorce or separation can be misplaced if it includes condoning the common litigation strategy of making a false domestic violence accusation.
We should also seek and support legislative change to make it a criminal offense to make a false report of domestic violence in a judicial proceeding. That should be followed-up with demands on prosecutors to prosecute the crime and vote out those who refuse to protect children from this offense.
I was a victim of domestic violence for over a year before my ex-wife finally left on her own will and then after that. I have also been falsely accused by the very one who committed the abuse. I am in the position of having to balance promoting a public policy of protecting those who are falsely accused while at the same time seeking to punish those who commit the offenses. For now, it is my opinion that we must put in safeguards to protect the innocent before we continue to seek punishment for the accused. If some victims of domestic violence must continue to suffer to protect the children of those falsely accused then that is a sacrifice we must make.
Additional information about Domestic Violence perpetrators and victims may be found here.
©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Thursday, July 23, 2009
Imagine going to a neutral third party to have a dispute resolved and then learning that the decision maker was a partner of your adversary. That is basically what the Minnesota attorney general has accused the National Arbitration Forum of doing.
This past Sunday the NAF made an agreement with the attorney general and will no longer be arbitrating between consumers and credit-card companies. The American Arbitration Association said Tuesday it will stop participating in consumer-debt-collection disputes until new guidelines are established. In addition to credit cards, some contracts involving autos, cell phones and health care require consumers to resolve disputes through binding arbitration rather than going to court.
What most consumers fail to recognize is that binding arbitration relinquishes the Seventh Amendment right to a trial by jury. The great danger is that you have a dispute now being decided by someone who is going to side with your adversary. The mega corporations will only use these arbitrators as long as they are winning and the arbitration firms know it. Essentially, when signing a contract that includes a binding arbitration clause you are saying "I won't fight, you get what you want". What the companies want is an enforceable judgment.
Dan Edelman, an attorney who filed a lawsuit last week seeking to invalidate NAF arbitration awards, said, “People don’t understand that arbitration awards can be turned into judgments and result in asset seizures.” Mark Lavery, a Des Plaines lawyer who represent borrowers, said "The National Arbitration Forum was really becoming a collections litigation strategy," The NAF denied Swanson’s accusations but said it decided to voluntarily stop administering consumer arbitration disputes because of mounting legal costs.
You have likely signed a contract which binds you to arbitration without knowing it. I do not and will not sign any contract that binds me to arbitration. If a company is going to try to screw me over then they will have to present their position to a jury it is that plain and simple. When presented with a contract ALWAYS read the fine print. If there is something you do not understand then ask the representative presenting the contract to explain it to you. If they are unable then ask for them to call their legal counsel.
There is a canon of law that provides that contracts must be made in simple, clear, understandable and easily readable terms. Thus, if you can't understand the 'fine print' you may have a voidable contract if you take the matter to a court. An arbitrator does not have the power to void a contract.
Do not let yourself be intimidated into signing any contract. Do not be pressured by expediency or people waiting in line behind you. They may actually appreciate learning that they too are about to get screwed in a contract also. Do not let a representative tell you that these are the 'standard terms' or 'what everybody signs'. Keep in mind I don't so not everybody does. Recall what your mother likely told you a time or two, "If every body else jumped off a bridge would you too?"
There is always someone else who will provide the service without the mandatory arbitration clause. As more people refuse to sign these contracts and take their service elsewhere, more companies are dropping these clauses or offering an opt-out. Protect your rights and know the law.
Wednesday, July 22, 2009
By the time they turn 18, approximately 50 to 60 percent of all children in the United States have been affected by divorce (Furstenberg, 1990). Virtually every teacher needs to be familiar with the effects divorce may have on children's classroom behavior. Unlike some other stressors, divorce-related problems (e.g., visitation, child support, parental custody) can be ongoing sources of stress to children, even up to 8 years after the initial separation (Grych & Fincham, 1997). As a result, teachers are likely to have students who are dealing with a variety of divorce-related issues at any one time. Effective teaching of these children requires an understanding of the impact of divorce, a supportive environment, safe channels for children to communicate feelings and problems, instruction on building coping and self-regulation skills, and resources to help parents.
Children, as well as parents, feel the stress and confusion of separation and divorce. Many kids feel angry, sad and frustrated about the prospect of their parents splitting up for good and are uncertain about what life will be like after divorce. Your ability to communicate successfully with parents and the children will help provide the support children need. Given the right support, children will be able express their feelings, grieve their loss, and emerge from this unsettling time as stronger more resilient people.
Stress is a response to change or conflict. It is usually considered to be negative and damaging. However, not all forms or levels of stress are bad. Competing in sports and achieving in school or at work are examples of positive stressors. Stress becomes negative when the pressures surrounding these and other situations become too great or when several small stressors occur at once, and one can no longer adjust. It is becoming evident that this type of stress overload is taking its toll on children as well as adults.
Two-way communication is essential for a successful partnership between teachers and parents. This means that parents keep teachers informed about important events in their child's home life, and teachers keep parents informed about their child's school activities and behavioural changes. If parents have recently experienced stressful life transitions, such as divorce or remarriage, their attention may be focused on the events in their lives. It may take extra initiative from teachers to obtain information.
Attitudes can foster partnership or create a barrier to partnership. Viewing parent involvement as a continuum, rather than categories (uninvolved vs. involved) helps develop partnerships with parents. This means taking the perspective that all parents are involved to some degree. Some parents are involved at a high level, acting as active partners and educational leaders at home and school, whereas others are involved at lower levels, acting as a recipients of education and support from the school. For parents experiencing transitions such as divorce or remarriage, lower levels of involvement may be all that are possible.
Attitudes are often shaped by our own experiences, professional and personal, in childhood and adulthood. For example, if your parents are divorced or you have experienced a divorce, those experiences may colour your attitudes about divorced parents and their children. If you have worked with a family that had an especially hostile divorce, that experience may affect how you think about divorced parents. It is important to be aware of our attitudes about families. By knowing what our attitudes are, we can ask ourselves where those attitudes come from, and decide whether they are accurate or not. Becoming familiar with research on divorce and families can help in developing informed attitudes.
It is also important to be aware of parents' attitudes, which range from avoiding involvement with school to being overly involved. Most parents fall somewhere in the middle, they are happy to be involved on occasion if they are approached. Parents' attitudes are often influenced by their own experiences with school as a child. Those who had positive experiences at school may be more willing to be involved. Parents who understand the school system in the U.S. and come from similar cultures may be more likely to get involved than parents who are from cultures in which school personnel are viewed as authorities rather than partners. Parent involvement is also greater when parents perceive the school environment as warm, but structured, with clear limits and routines.
Communicating with both parents is essential to helping children cope with a divorce or separation of their parents. Traditionally mothers have managed most of the communication with the other adults in a child's life, such as child care providers, teachers and coaches. As our culture changes and particularly after a divorce, many assume that the communications will continue to be with the mother. However, in most cases, both parents should be actively involved in communicating with other adults in the child's life. Both parents should have equal access to health and school records unless there is legal documentation, such as a protective order, prohibiting access. State law mandates that both parents, regardless of legal custody, have equal access to their children's school records. See IC 20-33-7-2
Try to involving the nonresidential or non-custodial parents [NCP] in school activities. NCP's often feel excluded by institutions and organizations, including schools. Invite NCP's to participate in school activities, programs, and field trips. Involving the NCP's in school activities encourages and supports that parent's involvement in the child's life.
Encourage all parents to monitor their children's school progress. Children's school performance may be affected when then their parents divorce. However, if children continue to achieve in school, they are less likely to develop other problems. Parents may need information about how to help their children succeed in school. Send home a handout at the beginning and middle of the school year offering tips for improving study habits.
Try using a variety of formal and informal methods to communicate with parents going through divorce or separation.
*Parent orientation nights. Offer multiple parent orientation nights at different times and days of the week.
*Develop a system for keeping track of family changes. Collect parent information cards at the beginning of the year. Send them out again mid-year, asking parents to make changes as needed.
*Offer parent-teacher conferences at times convenient for parents. Offer opportunities for divorced parents to have separate conferences. Some divorced parents may be able to attend conferences together, but if there is hostility between parents, it is probably better for them to attend separately.
*Send notes home. Make sure that the nonresidential parent receives notes, unless there is a court order that limits the parent's access. Some teachers make up a weekly packet of information that the parent can pick up. This is more reliable than expecting the child to get the information to both parents.
*Make telephone calls. If possible, make calls to both the residential parent and nonresidential parent. Sending a note home at the start of the year to find out when parents are available for telephone calls may make it easier to reach parents. Call parents to share both positive information and concerns.
In your communications be sensitivity to family diversity that these divorced parents now have. Avoid terms that may be offensive to some families, such as "broken home," or "real parent." Don't assume that individuals in the same family have the same last name.
It may be good to get with both parents to develop a school related parenting plan. This document can details how the parents will respond to school emergencies, where to send notices, who is responsible for signing permission slips and who other significant adults in the child's life are. It will includes the residential and legal custody arrangements as well as the financial responsibilities of each parent for such things as book rental, lunch payments and special fees or field trip costs.
Sole legal custody gives one parent the decision-making rights, responsibilities, and authority related to the health, education and welfare of the child. Joint legal custody gives parents shared decision-making rights, responsibilities, and authority related to the health, education and welfare of the child. Physical custody designates where the child will reside and who provides the care and supervision.
Divorce can have a substantial effect on children's functioning. According to research reviews (Amato & Keith, 1991; Grych & Fincham, 1992, 1997; Kelly, 1993), children of divorce, when compared to children from dual-parent families, exhibit more "acting-out" behaviors (e.g., aggression, conflict with school authorities) as well as maladaptive, internally directed behaviors (e.g., depression, anxiety, and withdrawal). Children of divorce also are more likely to perform less well academically, have a lower academic self-concept (but not lower self-esteem), and are less motivated to achieve. These adjustment difficulties are sometimes directly divorce-related, and sometimes due more to problems in parents lives.
A child’s commitment and stress levels are often controlled by a parent or other influential adult. Children typically welcome such events as birthday parties, field trips, and organized activities, and may not recognize overload. Often a parent has a strong desire that a child participate in sports, or study dance, or take music lessons. The child’s level of enthusiasm may not match the adult’s, and the result, for the child, can be stress. Children also feel pressure from unwelcome events such as divorce, abuse, and peer pressure. These, too, promote stress in a child’s life.
Some children will express their feelings directly. Others, however, may internalize stress and show it through sadness, depression, or withdrawal. Still others exhibit feelings of stress outwardly and begin to misbehave (Ellcind,1988; Schor,1995).
Here are some signs that stress may be having a negative impact on a child:
*The child develops physical symptoms, such as headaches and stomach pains.
*The child seems restless, tired, and agitated.
*The child appears depressed and will not communicate how he or she feels.
*The child seems less interested in an activity that was once very important to him or her, such as baseball or dance class.
*The child’s grades begin to fall, and he or she has less interest than usual in attending classes and doing homework.
*The child exhibits antisocial behavior, such as lying and stealing, forgets or refuses to do chores, and seems more dependent on the parent than in the past.
*The child may express their anger, rage, and resentment with you and your spouse for destroying their sense of normalcy. Angry outbursts that continue or become violent may be signs that they need help coping with their feelings.
*The child may feel anxious when faced with big changes in their lives. This is natural for children. However, if they seem to be worrying endlessly about minor and major situations, or if their anxiety is causing eating and sleeping problems, they may need more support.
*The child's sadness about the family’s new situation is normal. But sadness coupled with a sense of hopelessness and helplessness is likely to become depression. When children feel depressed they may withdraw from their parents or loved ones, neglect their homework, dissociate from friends and discontinue pleasurable activities. Their eating habits may change or they may engage in some form of self-destructive behavior or act out.
*Trauma in the child is determined by the child’s experience of the event, not simply the event itself. Different children in the same family may have dramatically different reactions to divorce. Trauma may cause depression and anxiety at the time of the separation or years later. It may also reoccur during weekends, holidays or times when the child misses the complete family unit.
Here is a breakdown by age range-
Ages 6 to 8 Years
Between 6 and 8 years, children need individual time with each parent to continue being reassured that they are loved. Fairness becomes an important issue; your child may want to be sure both you and your spouse get the same amount of time with him. Children this age are also interested in issues such as who is to blame or who is at fault. If your child expresses hope of reuniting your family, make sure he spends time with both of you separately to help cement the reality of the situation. Your child's feelings of unhappiness may be expressed as sadness, anger, or aggression. He may have problems with friendships or in school or stress may take the form of physical problems, such as upset stomaches or headaches.
Ages 9 to 12 Years
As children reach this age, they become more involved with activities apart from their parents. When divorced parents reside close to one another, equal time-sharing may work, but preteens may need different schedules to accommodate their changing priorities. School, community interests, and friendships begin to take precedence for children in this age range. Your child may refuse to share time with you and your spouse equally and may try to take sides. Expect this behavior and don't take it personally when it occurs. Warning signs for this age group include peer difficulties, loneliness, depression, anger, or physical symptoms like headaches or stomachaches and learning problems. Role reversals - when a child feels compelled to support or care for an emotionally distraught parent at his own emotional expense - can also arise. This is not a healthy situation for the child. Parents who recognize role reversal in their family need to find ways to get emotional support for themselves and relieve the burden from their child.
Ages 12 to 15 Years
Children in this age group need consistent support from both parents but may not accept equal time-sharing of their living arrangements. They may externalize blame for the divorce to one or both parents and may become controlling by demanding to stay in one place or to switch residences constantly. Depression, moodiness, acting out, poor performance in school, use of alcohol or other drugs, sexual activity, or chronic oppositional behavior can all signal that a teen is having trouble. Regardless of whether such troubles are related to the divorce, they are serious problems that affect a teen's well-being and indicate the need for outside help.
Ages 15 to 18 Years
Teens in this age group may become focused on establishing their independence and on social and school activities, and they may become intolerant of their parents' problems. Although your teen still needs your support, he may also tire of worrying about you. Talking frequently with your teen about his feelings may be helpful. Although teens may want to see their parents happy, they may have mixed feelings about seeing their parents dating other people. They may feel that condoning parental dating would be disloyal to the other parent. Older teens who need help may have behavior problems, exhibit depression, show poor school performance, run away from home, or get into trouble with the law.
Be part of the solution, not the problem. Well-meaning parents and adults can sometimes be the cause of children’s being over-committed at too early an age. Even what may have been a manageable level of commitments may no longer be so for a child experiencing separating parents. Sometimes adults may try to involve children in more activities to keep their mind of the divorce. This can have the opposite effect of what was intended. Some children simply need personal time to adjust to this situation.
If you suspect a child is suffering from stress, evaluate the child’s situation or activities, and work with the child and parents to identify solutions. Children are not developmentally able to handle adult-level stress. Because they cannot think or feel the same ways adults do, it is the adult’s responsibility to help keep children from becoming stressed and overloaded.
It may be up to you to use your ability to communicate with parents and the children that will help provide the support children need. By providing the correct support you may be able to help these children express their feelings, grieve their loss and successfully emerge from this transition in their life.
Indiana Custodial Rights Activists
Contributors to this paper:
Purdue University Extension
University of Missouri Extension
Tuesday, July 21, 2009
The right to a trial by jury extends to both civil and criminal matters. The jury system is designed as a two part collaborative by citizens to maintain their control over the rule of law. That is, the defendant in a criminal prosecution or either party in a civil suit must demand a jury trial, and, jurors must be willing to be empaneled. Of course the court can compel people to be jurors but a willing venire better supports the principles of our Republic.
The principle of a jury trial was first established in the year 1215 in England when King John signed the Magna Carta. The right to a trial by jury was adopted by our Founding Fathers through the Fifth and Sixth Amendments to the United States Constitution.
In Indiana, the right to a trial by jury is protected by the Bill of Rights of our state constitution.
Article 1 § 13 (a) “In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury...” Article 1 § 20 (a) “In all civil cases, the right of trial by jury shall remain inviolate [undisturbed].”
Jury service represents one of the most important civic responsibilities we have as citizens. When you fulfill your obligation for jury service, you are helping to protect our liberties and to preserve our system of justice.
Would you like to have the power to veto a law just like a governor? Would you like to have the power that your veto can't be over-ridden? If so, then you want to be a juror. This is what is known as jury nullification. The concept of juror nullification is the foundation of rule by the people. Our government was established by the people and for the people. Ultimately, we the people, have the last say. This is why it is so important for everyone to demand jury trials. This allows the people to exercise their ultimate right; the power to determine the law.
Judges will tell you as a juror that you have the responsibility to determine the facts of the case. What they rarely explain is that you have the right to determine the law. That is, you get to decide if you want the law enforced in that situation.
In Indiana it is a criminal offense to tell your child, under the age of 15, to masterbate instead of having sexual intercourse or to wait and have sexual intercourse after you get married. You have likely at one time or another said that some law is stupid and shouldn't be enforced. Your opportunity in challenging that is to demand a jury trial if charged under that offense or to vote for acquittal if serving on a jury hearing such a case.
The importance in demanding a jury trial in every criminal case is that it ensures that only those cases which truly serve the public interest will be prosecuted. Currently about 96% of cases are settled through plea agreement nationwide. The courts are still congested. The remaining 4% of cases do not all go to jury trial, some are dismissed.
My criminal charges result in dismissals because I demand jury trials. I have even gone so far as to demand that a felony charge be reinstated against me after it was dropped so that I could have a jury trial and use the court's time. That case involved an allegation that I had severely abused my child which was completely false. This charge was filed immediately after I started a father's rights group in Boone County Indiana.
The trial was schedule to take place for three days with more time allotted as needed. I had 600 pieces of documentary evidence and over 30 witnesses to present. Without ever going to trial 12 hours, or 1.5 days, was spent on pre-trial hearings. I expected the trial to take at least one week itself. That would mean that my trial alone would take nearly 1.5% of the court's time in the two years it went on. In a court that handles over 1000 cases a year that is just not practical. The prosecutor knew it and that is why the charge was dropped.
This brings me to why you should always demand a jury trial. In a plea agreement you have a 100% chance of being adjudicated guilty. The rate is much lower when jury demands are made. In fact, a study of 18 months of criminal cases filed in Boone County, Indiana during 2005-2006 revealed that less than 6% of cases where a jury trial was demanded resulted in a conviction.
Last week I obtained the trial schedule for September 1, 2009. There are 25 trials scheduled for that day of which 21 are felonies. Three are Class B felonies. Courts here rarely hold more than two criminal jury trials in one week. When they do, other matters such as divorces and other civil cases get pushed back. In reality, the court can hold about one jury trial per week. This is consistent with the common finding that courts can only handle about 1/20 of cases going to trial.
Going on odds alone if every one demands a jury trial you have a 19/20 chance of your case getting dismissed. So then why do so many people opt for a plea agreement. This is due in large part to monetary considerations. Whether you have a public defender or private counsel money is a significant consideration.
Private attorneys do not come cheap. A drawn out jury trial can cost many thousands of dollars. Had mine gone to trial the fees would likely have been about $25,000. Most defendants simply cannot afford that. That leaves using a public defender or going pro se.
In Boone County the public defenders [PD] are private attorneys who operate out of a draw pool for assigned cases. We are not a large enough community to have our own public defenders office with retained attorneys. These attorneys get paid a flat fee depending upon the type of case. Just last week Judge Rebecca McClure told one of these PD I know you have already put more time into this case than what you are getting paid for so I would like to more it along. There is a much greater financial incentive for the PD to take a plea agreement than go to trial.
If you choose to go pro se and represent yourself then only do so with some assistance. Still you have a distinct advantage that those who are represented by attorneys don't; you can flood the court and prosecutor with motions, discovery and other processes that only serve to overwhelm them with paperwork. This is commonly referred to as defense by paper-storm. This is especially effective in misdemeanor cases where there is just no value in putting more effort into prosecuting a misdemeanor case than a murder case.
The other reason that most people take a plea is because of the false assumption that they will get a lighter sentence. I have seen defendants sentenced to the statutory maximum after taking a plea that made no sentencing recommendation. That is stupid. It was the same as the maximum sentence that could have been given if convicted by a jury.
Earlier this year I was involved in advising a defendant and his public defender on a misdemeanor case. The prosecution had offered to let him plead guilty to any one of the seven charges in exchange for the rest being dropped. The agreed upon sentence would be time executed plus one year probation with six months of that on GPS monitoring. I thought that plea offer was a joke.
I was adamant that they reject that plea offer and go to a bench trial since a jury demand had not previously been tendered. I gave them a 95% probability of equal or less than sentencing as I did feel one of the charges would stick and I was familiar with the judge. Fortunately my advice was taken. The defendant was convicted on six of the seven counts and sentenced to six months detention with all the time suspended except the portion already served. He walked out of court that day a free man, no probation, no fines.
In Boone County the first trial of the year in 2006 took four days and resulted in a hung jury. Just last week a jury could not come to a unanimous vote in a child rape case. In a one day trial in 2007 where I advised the defendant and the PD a jury returned an acquittal in under an hour and some members actually apologized to the defendant for what she had to go through. In another 2007 case I advised a defendant to withdraw his guilty pleas and go to trial. He did and was ultimately convicted but was sentenced to less time than called for in the plea agreement. Earlier this year after multiple days of hearings in a murder case, that was headed to what would likely have been a 7-10 day trial, the prosecutor offered a plea agreement to time served and three years probation which was accepted by the defendant.
The courts cannot handle more than 1 out of 20 cases going to a jury trial. Judges do not always hand down sentences greater than those offered in the plea. Jurors do not always convict. Public defenders sometimes get paid more per hour if you take a plea agreement. But, most importantly, our system of representative government and the strength of our republic depends upon jury trials.
See a true patriot stand up to the oppressors here and demand a jury trial for a driver's license suspension hearing. If you have the opportunity to demand a jury trial, do it. If you have the opportunity to serve a juror, do it and do it emphatically.
Stuart Showalter, LLC
Saturday, July 18, 2009
In our highly politically charged society that pits group against group we rarely seek to work as a collective unit but instead seek to see what advantage we can attain over others through legislation. It is in this quest that the roll of the lobbyist gains importance. Of course when things don't go our way we blame "special interest" and find a scapegoat in lobbyist. For years there have been calls for reform that will limit the roll or influence of lobbyist.
Before embarking on a hastily conceived ad hoc approach to political activism it may be best to learn more about lobbying and lobbyist. Often looked upon as secret and mysterious, lobbying gives rise to speculations that add fuel to perceptions that are rarely consistent with its true nature. The result is distrust towards those engaged in lobbying, a totally legitimate occupation according to the National Assembly. The opinion that lobbying should not occur in a democratic society also impairs the overall perception of this activity. In this context, it is not surprising to see people who lobby hesitate to identify themselves as lobbyists. To clarify these notions, it is important to distinguish between lobbying and lobbyists.
Lobbyists use time spent with legislators to explain the goals of the organizations which they represent and the obstacles elected officials face when dealing with issues, to clients. I believe that after you read this you will have a greater appreciation, not only for the work I do as a lobbyist, but, for the valuable roll that lobbyist serve in the legislative process.
Overall, lobbying corresponds to the steps taken by a lobbyist to represent the interests of a lobby, a client, an enterprise or an organization. It concerns oral or written communications aimed at influencing the decisions of a public office holder. In Indiana Lobbying is define as "communicating by any means, or paying others to communicate by any means, with any legislative official with the purpose of influencing any legislative action." IC 2-7-1-9
Many times, people who communicate with members of a public institution in an attempt to influence a decision are specialized stakeholders called lobbyists. A lobbyist is not a person specializing in public relations; he or she may just as well be a lawyer, an engineer, a urban planner or a geologist, for example.
In essence, a lobbyist's function is to speak on behalf of the lobby, of a client, an enterprise or an organization that he or she represents in order to influence a public office holder.
As representative of a lobby, client, enterprise or organization, a lobbyist must be well informed, not only about the project he is responsible for, but also about the political or administrative structures of each of the authorities his file must go through. Moreover, he must develop intervention strategies and be able to communicate his message efficiently.
In Indiana Lobbyist is defined as "any person who engages in lobbying and in any registration year, receives or expends an aggregate of five hundred dollars ($500) in compensation or expenditures reportable under this article for lobbying, whether the compensation or expenditure is solely for lobbying or the lobbying is incidental to that individual's regular employment." IC 2-7-1-10
In Indiana, where I work as a lobbyist, our state legislators introduce over 2000 bills per year. When Michael Moore paraded around Washington D.C. in an ice cream truck reading the text of The Patriot Act many of the legislators where being exposed to those words for the first time. Senator John Conyers was candid in admitting to Moore that they don't read the bills presented to them.
Legislators are popularly elected, usually for their position on issues, not their skills in reading or writing law. Often times legislators are not familiar with the legal technicalities of the ideas they wish to put into legislation. Even the more simple concept of just identifying the issues is beyond the scope of most legislators.
This year and in the past as I testified at hearings on bills or before study committees I was spontaneously asked by the legislators who wrote passed them what the current law is or how it is applied. This year the House passed a bill by a vote of 99-0 that included provisions adopted from another law that was similar. However, this bill included a provision that judges consider the relationship of both parents with a child which has only lived with one parent. I was the only person to bring to the attention of the General Assembly that this law failed to consider the unique circumstances of paternity that differentiate it from marital relationships. I wrote about that bill here.
Lobbyist serve an essential roll of providing research, analysis and constituent desires to legislators. Lobbyist represent the interest of the organizations or enterprises who have hired them. Many people join organizations for the very purpose of funding the lobbying efforts. One of the largest lobbying groups is the AARP which claims membership of 35 million, over 1/10 of the US population. The AARP spends significant amounts of money to research, write and push legislators to pass laws on behalf of their 35 million members. Our members of Congress would face a logistical impossibility to accommodate communicating with 35 million people instead of the mere hundreds of lobbyist employed by the AARP to push their agenda.
If you have the skill and knowledge to research the topics that your legislators are called upon to debate then please step into the arena and assist. Not every shareholder in a corporation can visit the statehouse on their own behalf. Not every person affected by legislation can visit the statehouse on their own behalf. Not every legislator has time to listen to the concerns of each constituent and discuss legislation with them. Not every legislator has time to read all of the legislation presented to them. Until such time as that can happen then maybe it would be a good idea to appreciate the work that lobbyist are doing on your behalf.
Indiana Shared Parenting
Thursday, July 16, 2009
This story is worth reading, not because he is a non-father ordered to pay child support but because he was released from jail after not paying it. Highly unusual!!!
Hatley was ordered to pay support for a child who was not his and then jailed after he was unable to pay. After a year he was released from jail. Here is information on Indiana non support law.
This case exposes some very interesting legal scenarios. The first that I would like to address is the statement by Hatley's attorney, Sarah Geraghty, who stated that this case amounted to "blatant unfairness." This gives me an opportunity to say again what I always do about courts. “Fair is not in a court, it is a place where you find greasy food, stinky animals and amusements rides.”
To first understand how a father or rather, a non-father, could be ordered to pay child support for a child that is not his you need to know the purpose of child support payments. Child support payments are a means of transferring wealth that will not be disturbed except for a showing of of substantial abuse. That is to say as money passes from one persons hands to another the government and others skim a little bit each time and they will not give that up. Utah Senator Greg Bell candidly tells it like it is in saying child support payments are a "huge economic shift" that "may not go to the child".
Courts in nearly every state have upheld rulings that men who are known to not be the fathers can be ordered to pay support. These are a few instances in which support can be based; the man was married to the woman at the time of the child's birth; the man signed a paternity affidavit; the man put himself forward as being the father; the man cohabitated with the mother; the man was the only man known to the court to be having sexual relations with the woman at the time of birth.
To the common person it would seem simple that if you didn't do something you shouldn't pay. If the utilities for yours and the apartment next to you had been combined and you paid someone else's costs for 10 years while they paid none you would be entitled to a refund. Not so in child support cases. Justice Kenneth Bell of the Florida Supreme Court articulated it well in upholding an order for a non-father to pay support. “We find that the balance of policy considerations favors protecting the best interests of the child over protecting the interests of one parent defrauded by the other parent in the midst of a divorce proceeding.” What Bell is saying is essentially that we are going to make someone pay child support regardless of that persons natural responsibility if, instead, it would mean that no one pays.
Former Clinton County Indiana prosecutor Louis Evans put it to me this way; “You can buy all the food, clothing and everything else for your child but if you still don't pay her that money I will continue to prosecute you.” Eventually, I put it to Evans who ran away from the case. Child support payments are about transferring money not about the best interest of a child.
Similarly, Indiana case law establishes that the “best interest” of the child supersedes the legitimacy of a child support payment order. It is well-established public policy in Indiana that a primary concern of all three branches of Indiana government is the protection of the welfare of children. See Straub v. B.M.T. by Todd, 645 N.E.2d 597, 599 (Ind. 1994). The paramount concern of a court in any case involving child support must be focused on the "best interests" of the child. Whitman v. Whitman, 405 N.E.2d 608, 613 (Ind. Ct. App. 1980).
States establish their basis to order child support payments to recover their costs for public assistance. When mothers get custody and then receive public assistance the states go after the purported fathers to recover that cost regardless of ability to pay. The courts find that public policy supports ordering one person who has no liability in the child's birth to make those payments rather than the public at large through public assistance programs. Although child support payment orders are restricted to recovering money for the state they have become common place in most custody proceedings.
Courts are without authority to order child support 'payments' unless the order is established for the state to recover money paid to the mother through public assistance. In 2007 a Marion County Indiana man was acquitted by a jury after he was alleged to have failed to make $122,000 in child support payments. The jury found that he did provide 'support' to his children, not financial payments to the mother. Indiana Supreme Court case law establishes that a man has a duty to 'support' his children but not that this must be in the way of financial payments. The Court in Lambert v Lambert, 2007, cited Haase v. Roehrscheid, 6 Ind. 66, 68 (1854) (“[i]t is the duty of a father to support and educate his minor children”).
Courts have left it to the defrauded fathers to sue the mothers to recover any support payments that were made for a child that is not there's. Essentially what they are saying is if you are a woman and you want to go after any guy for money claiming he is the father we will help, but when it comes time for that defrauded father to get his money back he is on his own because the courts know it will never be collected. Again, child support payments are about the transfer of wealth. If there is no money to transfer then the state won't help a father recover it.
Hatley has experienced what few men have but what many more should; being freed from being imprisoned for not paying for a child that is not his. Unfortunately, until the public demands that their legislators pass laws to protect men from being ordered to pay for something that is not theirs then it will continue.
Tuesday, July 14, 2009
Based upon past acts and conviction statistics, the US Supreme Court has ruled that states may now limit the presumption of innocence in criminal trials to whites only. This reversal of hard fought for equal rights has outraged many in the civil rights and legal communities. Well, it would if it was true. I will get back to that story towards the end but before that I want to speak about Shared Parenting.
Often times new terms or concepts are surrounded by misconceptions. We have all heard of the “Patriot Act” but without knowing what is actually in the law you may be under the false impression that it is something that would have actually gained the approval of Patrick Henry. Likewise there are many misconceptions about Shared Parenting and Shared Parenting legislation.
About.com gives this definition of Shared Parenting:
“Shared parenting refers to joint physical custody, where both parents share approximately equal parenting time and are equally recognized by the law as the legal guardians of their children.” This definition should provide readers with a rather clear understanding of the term.
In April of 2007, Michigan State Representative Glenn Steil, Jr. introduced House Bill 4564, which would require shared parenting in all cases except those situation where either parent is deemed unfit, unwilling, or unable to care for his/her children. The bill was referred to the House Family and Children's Services Committee on April 5, 2007.
In January of 2009, Indiana State Senator Dennis Kruse introduced Senate Bill 560, which would require judges to presume that both parents would maintain custody of their children and have nearly equal parenting time unless they were deemed unfit, unwilling, or unable to care for his/her children.
Much confusion about Shared Parenting comes from the differences in application and result. Shared Parenting is a result where parents share in the decision making for their child and also have parenting time with them in a near equal ratio to each other or the time spent with their children pre-separation. Presumptive Shared Parenting is what is being sought as a mandate for judges. That is, judges will be required to put aside prejudices, personal financial interest and assumptions about genders and presume that both parents had equally parented the children prior to separation.
Presumptive Shared Parenting would have a dramatic effect in child custody situations. Judges would be required to order near equal parenting time unless some exceptions were met. The most significant portion of Shared Parenting legislation is the requirement that judges issue Findings of Facts and Conclusions of Law when there is a deviation from the presumption. This will provide a legal and factual basis for a custody order rather than a judge's assumption that 'mothers make better parents'.
Opposition to Presumptive Shared Parenting comes primarily from those parents who abuse children and don't want them having significant time away from that parent or the household where the abuse could then be detected or exposed. Another significant factor in opposition is the financial impact. Unequal division of responsibility for the children often results in a child support payment order. This 'transfer of wealth' is commonly known to not be used for the support of the children and through Title 42 Section 666 of the United States Code judges and prosecutors actually receive Social Security incentive payments for issuing and processing child support payments.
To put presumptive Shared Parenting into perspective I will now get back to what I opened with. In using race and the criminal courts as an example. I hope to bring forth a simple to understand analogy to the gender issues faced by fathers in the civil courts.
Imagine a situation in which two people are arrested for the same crime and are set for trial. One is African-American and the other is white. The jury for the white defendant is given these pattern instruction from the US Seventh Circuit;
“The defendant is presumed to be innocent of [each of] the charge[s]. This presumption continues during every stage of the trial and your deliberations on the verdict. It is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty as charged. The government has the burden of proving the guilt of the defendant beyond a reasonable doubt.
This burden of proof stays with the government throughout the case. The defendant is never required to prove his innocence or to produce any evidence at all.”
The jury for the African-American is then given these instructions;
“The defendant is presumed to be guilty of [each of] the charge[s]. This presumption continues during every stage of the trial and your deliberations on the verdict. It is not overcome unless the defendant presents evidence in the case that convinced you that the defendant is not guilty as charged. The defendant has the burden of proving his innocence.
This burden of proof stays with the defendant throughout the case. The state is never required to prove his guilt or to produce any evidence at all.”
Think of the outrage amongst the civil rights and legal community if that situation were to occur. If you are old enough or have sufficient knowledge of America's past then you will already know that this was the case at one time although not in the literal sense.
There wasn't such an actual jury instruction but there was the perception amongst jurist and jurors that when an African-American was arrested that he probably did it. There were times that a trial was actually seen as an impediment to justice. In 1930, at the Grant County Jail in Marion, Indiana where three young black men were held on charges of killing a white man and raping his girlfriend, a large mob estimated at 2,000 gathered seeking 'justice'. Before they could be tried Thomas Shipp and Abram Smith became the last confirmed lynching victims in the northern states. The Civil Rights Act of 1964 helped to bring about a presumption of racial equality and opportunity.
This is not unlike what occurs during child custody proceedings. Two parents enter the courtroom, one male and the other female. Although considered equal by statute, which says there is no presumption favouring either, that simply is not the case. The bias or prejudice of judges is apparent. It is as though the mother is told that there is a presumption that she is the fit parent and should have custody of the child(ren). The father appears to be on the opposite side having to present evidence to show why he should be considered fit or why the mother isn't.
Presumptive Shared Parenting would do for gender what the Civil Rights Act did for race. Both parents would go into court with the presumption that they are both fit parents for equally sharing custodial responsibilities. Neither would have to prove fitness to have custody. Judges would be required to order joint legal custody and set a physical custody arrangements that would provide nearly equal time with each parent. Although judges may still have prejudices or bias against fathers the change from a general judgment finding, where no reason must be given, to one where Findings of Facts and Conclusions of Law must be articulated by the judge would quell those biased rulings.
If you don't object to people walking into the courtroom and being considered entitled to equal due process based upon race then you shouldn't object to it based upon gender. Those who oppose equal rights for children and father's are no different than those who would tie a rope over a tree branch.
– Stuart Showalter
Indiana Shared Parenting
Monday, July 13, 2009
''We are moving into a world where your location is going to be known at all times by some electronic device,'' said Larry Smarr, director of the California Institute for Telecommunications and Information Technology. ''It's inevitable. So we should be talking about its consequences before it's too late.''
Today I am going to address issues of electronic tracking of your whereabouts and what steps you should take to protect yourself. Electronic tracking comes in many formats and can be readily accessed by the government or other people, often through subpoena or other surreptitious ways.
Cell Phones -
In 2008 Dennis Mullendore went on trial for the alleged shotgun slaying of his estranged wife along a stretch of Interstate 865 in the southern portion of Boone County. During the trial the prosecution called as a witness a representative of Sprint cellular service who testified as to the technical capabilities of cellular phones and towers to track the location of the phone.
Essentially a cell phone tower emits and receives signals in three directions covering an approximate 120 degree range each. The witness testified that when there are overlapping coverage areas the cellular phone will attach itself to the strongest signal. Cell phone towers have a range of approximately 5 miles. Thus, through accessing the records of the tower activity it can be determined where a cell phone is located to within just a few miles such as a three mile stretch of interstate.
If the phone can connect to one antenna, it can calculate a very rough approximation of the user’s position to within a few miles. If it gets a signal from two antennas, it can hone in much further, but if it’s in touch with three or more cell sites it can plot almost the exact location by measuring the distance from each site and using a process known as “triangulation” to find the users within a pretty close range.
Ultimately, Mullendore's contention that he was not in the area and therefore could not have been the one who either drove the vehicle or was the passenger in the vehicle was not persuasive to the jury and Mullendore was convicted of First Degree Murder. With the new FCC's wireless 911 rules pinpointing your exact location will now be commonplace. The question isn’t whether you can be found, but how that information will be used and who will have access to it.
When the system is fully implemented, 911 operators will know your longitude and latitude, which is a good thing if you need help and can’t report your exact location. However there seems to be no rule limiting that technology for emergency services only. In fact, there are numerous commercial services that are already offering this E911 location technology.
While there are benefits to these technologies, there are also dangers. My reason for bringing this to your attention is not to help you plan or escape from a murder scene undetected. I want to focus on issues on how this tracking technology is related to family law courts. In child custody or support proceedings there could be issues raised as to allegations of ones whereabouts whether visiting a bar or doing additional work on a farm. In a highly contentious custody proceeding a lawyer could seek cell phone records to show a parties whereabouts. A GPS map could detail exactly where and when you were at particular locations. Arguments can be made as to which parent is selecting the safest driving routes or times with children which is in their best interest.
Do not be assuaged that simply carrying the cell phone turned off keeps you from being tracked. The government has technology that allows your receiver on a cell phone to stay open even when your phone is 'disconnected'. This allows them to listen to the ambient sound around your phone including any conversations you may be having in person. The best way to avoid having your phone track you is through not carrying it. Alternatively the phone should be carried without the battery in it. This is just one technology and one reason why cell phones should not be carried on your person.
GPS car tracker -
This device, which has a self-contained power unit or can be connected to your vehicle's power source, is added primarily as a safety device and is part of the internal operating system of the vehicle. A GPS car tracker can let you know where your car is, the direction of travel and the speed of travel. One of the main reasons that people install these is to lower their insurance premiums. Insurance companies are impressed by only one thing: lowering their risk. A GPS car tracker does just that, so you will be able to realize a deduction in your premiums.
A record is made of all movements of the GPS device. This provides an additional benefit. If you are involved in a collision the GPS data could be used to show the exact movements of your vehicle prior to the collision. These records could also show if you were at a location you claimed not to be or could imply that you were not where you said you were. All it takes to get these records is a simple subpoena to the record holder; your service provider.
In addition to the professionally installed devices are those that are placed somewhere on the exterior of the vehicle and used by someone whom you may not want knowing your whereabouts. This includes ex spouses, stalkers, pedophiles or any other people whom for whatever reason want to know when and where you are.
Radio frequency identification chips went through a period of testing on cats and dogs early in the first part of this decade. After successful test on animals they are now being installed in humans. Five years ago Florida-based Applied Digital Solutions received FDA approval to start marketing the chip for use as a medical record storing device. Just as in science-fiction movies the rice grain sized device is installed just under the skin. As is passes by a reader the data is read from it.
Although more limited in scope the RFID can also be used to track your location when passing by a reader. As time passes more employers are requiring RFID chips to replace name badges and key cards for access to offices. The opportunities for misuse of this technology probably exceed that of the others as data may also be added to this chip without your knowledge.
For more on RFID please read this article.
Like cell phones, other technologies such as laptop PCs, PDAs and Internet phones can track your location through GPS technology. When in possession of any of these electronic technologies I hope you will keep in mind how they can be used against you and that you will take some precautions against having that happen.
When traveling batteries should be removed from cell phones and any other wireless devices including laptop computers with built-in wireless cards. GPS devices should not be used on your vehicle. If you have one you should remove it although in some vehicles this may require replacing the wiring harness if it is integrated into the electrical system. In the alternative you can use lead to block signals. A lead-lined box that your devices can be placed into while traveling would be sufficient to maintain your privacy and keep electronic snoops and hackers from knowing your movements.
Anyone who has been regularly involved in child custody proceedings knows that there are parties who will go to any length to challenge the other. Electronic tracking devices can be used to show where the children are, what time they return to the house, did you drive through a gang infested neighborhood, were you actually at the park with the children and many other situations that can be used against you in court.
Sunday, July 12, 2009
Two county prosecutor's in Indiana are now in trouble with the law for allegedly violating the very laws they swore to obey and uphold. Unlike ordinary citizens and residents, those in law enforcement are required to affirm or swear that they will obey and uphold the laws. This places a special burden or higher standard upon them to obey the laws. Many of them don't and this past week two have been in the news for, what appears to be, having been caught at it.
County Prosecutor practicing without a license.
First, I'll start with the most egregious. Newton County Prosecuting Attorney J. Edward Barce has had a Complaint for Disciplinary Action filed against him by the Indiana Supreme Court Disciplinary Commission on 13 “factual allegations,” according to the commission’s Executive Secretary Donald Lundberg. Apparently Barce has been acting as the Newton County Prosecuting Attorney without having a law license in good standing in the state of Indiana.
Indiana Code 3-8-1-19 requires that “a candidate for the office of prosecuting attorney must be admitted to the practice of law in the state before the election, as provided in Article 7, Section 16 of the Constitution of the State of Indiana.” An attorney who's been placed on inactive status may not use his or her Indiana law license to practice law. Indiana Code 33-43-2-1 makes it a crime for “a person [to] profess to be a practicing attorney, conduct the trial of a case in a court in Indiana or engage in the business of a practicing lawyer without first having been admitted as an attorney by the supreme court.” However, Barce's law license was placed on inactive status on August 5, 2005 and was not reinstated until February 23, 2009 therefore leaving him without admission to the practice of law during that time.
While not being admitted to lawfully practice law in Indiana Barce's office filed more than 1,000 criminal felony and misdemeanor cases in the Newton Circuit and Superior Courts and disposed of more than 1,000 cases that had been pending in the courts. The fact that Barce’s law license was inactive was brought to light on February 19, in a Lake County courtroom where he was serving as a special prosecutor. Gary defense lawyer Carl Jones who was defending Jerome Taylor, accused of trafficking with an inmate, questioned Barce's license status.
Superior Court Judge Dan Molter said he was unaware of the license issue with Barce before reading about the allegations in a Lake County newspaper. The defendants in the cases prosecuted by Barce's office while he was practicing without an active license in good standing should now be able to challenge their convictions.
Marion County deputy prosecutor arrested on multiple offenses
WISH-TV in Indianapolis reported the following yesterday. Gillian Deprez, a Marion County Deputy Prosecutor, is facing several charges after Metro police officers arrested her for drunk driving early Saturday morning. Investigators say a breath test showed her blood alcohol level at .15.
According to police Deprez hit a car on 61st Street between Winthrop and Guilford then drove away. When an officer pulled her over and gave her a sobriety test she failed all three parts.
Saturday, July 11, 2009
Many of you reading this are pro se, also known as self-represented, litigants in family law courts. In reality most divorce cases now involve at least one party being self-represented. Today I am addressing a specific circumstance in paternity cases. This specific circumstance applies to few of you but it is worth reading for all as it shows just how complicated the web of family law is and why you must fully research the laws.
The first thing to note is, that based upon the decision handed down by the Indiana Supreme Court on 26 June 2009, the trial judge and the Indiana Court of Appeals misinterpreted the law. The Chief Justice did not agree with the majority of the court either.
The case, captioned as In re Adoption of Unborn Child of B.W., involved a child born out-of-wedlock being placed for adoption over the objection of the putative father. It was heard by the Honorable Chris D. Monroe, Judge of the Bartholomew Superior Court.
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 week I analyzed the opinion of the Supreme Court and the relevant laws. I have written an amendment to the laws that directly pertain to this case and sent it personally to each of our Indiana legislators. The following text will explain the problem and what I see as a viable solution.
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.”
The adoption action was filed by the mother in the Superior Court. The father then filed a paternity action in the Circuit Court pursuant to the local rules. The father's position on appeal was that the form proscribed by Indiana Code § 31-19-4-5 states that the father's consent will be irrevocable 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. It appears that the trial court found that in failing to file a “Motion to Contest” that he failed to do one of those two option and, thus, failed to properly contest the adoption. However, it appears that the Supreme Court saw “or” as making one of those two options a qualifier to contesting the adoption rather than a disqualifier. I also believe it was that same intent of the Legislature in 1997 when the statute was adopted that the father could file a petition for paternity in a Superior or Circuit Court or a motion in the court hearing the adoption petition since the word “and” requiring both actions was not used.
In this cause, brought before the Supreme Court, there seems to have been a failure in the mechanism to get these matters heard in the same court. As Justice Boehm wrote, he would like to see a mechanism in place to ensure that the cases are consolidated. I find two ways of doing this. One is to require that the Clerk of the Courts search for pending cases and notify the courts of concurrent cases and then the court hearing the adoption petition could consolidate sua sponte. The other could be to require that a paternity action be filed in the same court as a pending adoption proceeding. The second option seems to be the easiest as a putative father would already have notice of the court in which the adoption proceeding has been initiated.
The Superior Court entered an order finding that the father had failed to file in the Superior 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). Again, 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.”
It is understandable that a court reading only Indiana Code § 31-19-10-1 would assume consent to the adoption had been granted by the father not filing a motion in objection in that court. However, Indiana Code § 31-19-4-5 provides an alternative to objecting to the adoption, which is the filing of a paternity action.
A slight modification to Indiana Code § 31-19-10-1 would alert the court to the methods in which a father could preserve his rights under Indiana Code § 31-19-4-5. Indiana Code § 31-19-10-1(b) could then read, “A person contesting an adoption must file a motion to contest the adoption or file an action to establish paternity with the court hearing the adoption action not later than thirty (30) days after service of notice of the pending adoption as proscribed by Indiana Code § 31-19-4-5.
Indiana Code 31-14 et seq would need only slight modification to require the filing of a paternity action to be “filed with the same court in which an adoption proceeding is currently pending involving the same parents.” Considering the high probability of pro se litigants in this area it would be prudent that the court initiate the consolidation of the cases sua sponte.
A link to the proposed amendment is provided here. This bill would provide for uniform hearing of paternity proceedings involving the putative father following a petition for adoption filed by the mother. Additionally, it brings congruence to statutes involving adoption and paternity.
Please contact your local representative and ask that he or she support legislation to harmonize Indiana's paternity and adoption statutes based upon the case In re Adoption of Unborn Child of B.W.
Stuart Showalter, LLC
Thursday, July 9, 2009
I was recently meeting with a client when I noticed that he had a Kroger's Plus Card. I cautioned him that he should not be using that card when he is buying the snack foods for his children as he is currently involved in a custody battle. I am a very health conscious consumer so I have little need to follow the advice I have given to others but it reminded me that there are many people out there who are using the cards without knowledge of how this information will be used against them.
Store loyalty cards are used by nearly all shoppers in today's world of precision tracking of consumers spending habits. This allows retailers to learn what consumers purchasing habits are and to market directly to them. In exchange for this valuable information the retailers offer a bit of a discount to those consumers who use these cards to track their purchases.
This information is also valuable to others besides the retailer who issues the card. Not only is this information often sold to those who data-mine and create profiles but those who may be nearest to you would like to have it. Regardless of what privacy you may think you have others can readily access information about your purchasing habits.
This can be accessed with a subpoena or warrant and used against you in court proceedings. In a well-publicized "trip-and-fall" case in California, a man shopping at a Southern California grocery store sued after falling in one of the aisles. It was reported (although the store has since denied it) that the store threatened to use his shopping history, which included large amounts of alcohol, against him in the proceedings. More important to those who may be in a child custody proceeding are what grocery items you may be purchasing for your children.
Chicken nuggets, fruit leather, potato chips, hot dogs, toaster pastries, soda and prepackaged lunches are considered by nutritionists to be among the worst foods for children. When a court is considering “the best interest of the child” an effective litigator could make the argument that a parent, whose record of food purchases show these items, may not be acting in the best interest of the child. In the near future, it's going to be become very difficult to assert that it wasn't you who bought those or that pregnancy test kit, those cigarettes, or that Playboy magazine.
Personally, when I go grocery shopping I never use credit cards, it's cash only for me. I use a loyalty card but there is also a way that I ensure my purchasing information is not being tracked. The easiest way to do this is through the use of an alias and an alternate address. Most rewards cards are available instantly and do not require name and address verification although special offers may be sent to the mailing address.
It is not difficult to get an alternate address if the card must be sent through the mail. Simply find an empty house nearby with a 'for rent' sign out front and a mailbox. Check every few days until the card arrives. In the meantime don't purchase what are considered to be “bad” items when using your card. What few pennies you save may not be worth losing your children over.
Stuart Showalter, LLC
Saturday, July 4, 2009
Can you recall hearing the Aesop's story of The Boy Who Cried Wolf? The moral of that story is to not cry out in fear when there is no danger for when there actually is we won't come to your rescue having been conditioned by your false alarms. Just as movies get redone to appeal to a contemporary audience and setting so should Aesop's fable about “crying wolf”.
I propose that we need an update to the long standing moralistic tale by Aesop. This one could be The Spurned Woman Who Cried Domestic Violence. The radical feminist crowd, who wants fatherhood to be the equivalent of an ATM, seeks to portray domestic violence [DV] as a gender specific issue where women are always the victims of brutal attacks by men. Reality tells us that is far from the truth but society has been so inundated with this agenda that women actually see making false allegations of DV as doing nothing wrong. Although it clearly goes against the radical feminist agenda and their propaganda, the truth is men are the victims in ¼ of intimate partner homicides.
Let's first look at how this agenda has manifested itself in the relationship of two parents who went their separate ways earlier this year. The parties appeared on the Judge Judy show broadcast 30 April 2009. There the father had sued the mother for damages to his apartment caused by her during a 3:00am invasion when she kicked in his door, catching him in bed with another woman.
During the week following that encounter she filed for a protective order and two days later took their child to see the father. Judge Judy berated this young woman for obtaining a protective order against her ex-fiance' as retaliation for him breaking off the engagement for another woman. Although Judge Judy confirmed that the mother had made a false allegation of physical abuse the mother continued the charade proclaiming that Judge Judy is “crazy”. She protested Judge Judy's finding for the father saying, “I don't know what I did wrong” “I did everything right”.
The hearing can be seen here. You'll need to scroll down a bit on the page to “Judge Judy confronts a 'battered woman'”
This so-called victim who claims to have done nothing wrong in her false DV allegation vendetta is backed-up by the establishment. Lydia Watts, executive director of the Victim Rights Law Center, says there is no epidemic of women fabricating tales of domestic violence– “I have heard thousands of victims’ stories and barely ever doubted one.” It is that blind allegiance to the radical feminist agenda that is so dangerous for children. These man-haters would rather see a child placed with a violent, abusive or neglectful woman than any man.
Civil libertarians should be alarmed by domestic violence laws. A criminal act - domestic violence - is relabeled a civil offense, thereby stripping the defendant of all the protections available to criminal defendants. The “defendant” is summarily “convicted” and then pays a fearsome price: instant eviction, loss of access to and control of his assets, and enforced separation from his children. Imagine applying this concept to driving offenses. Take reckless driving for example. Currently this criminal offense is triable by jury. Imagine taking the route of DV proceedings for use in traffic violations. A cop goes to a judge and says he witnessed you driving recklessly nine years ago. The judge issues an immediate order suspending your license and impounding your car.
Fortunately, Judge Judy recognized what nearly every family law judge in the United States has been unwilling to admit: that not all allegations made in Petitions for an Order of Protection are true. Judge Judy recognizes that these false allegations are used as a method of retaliation or for leverage in gaining child custody. She also notes the damage that false allegations do to those who truly do suffer actual abuse.
A critical examination of false DV allegations and perpetrators needs to be made. One feminist, Wendy McElroy, has called upon women to stop making false allegations of rape or DV so that the gains made by women in those areas are not taken away. Yet, the false allegations continue at an alarming rate. McElroy cites a study conducted by Eugene Kanin of Purdue University, that indicates the true rate of false rape reporting may rise to the 40 percent level. Based upon DNA evidence The Innocence Project has gained the release of many men who have been falsely convicted of rape or murder. False allegations are a reality.
Another reality is that women commit more acts of DV than men do. The CDC reports that in non reciprocal DV situations women are the abuser in 70% of the cases. A University of Florida study recently found women are more likely than men to "stalk, attack and abuse" their partners.
The CDC reports that there are four types of Intimate Partner Violence [IPV]
• Physical abuse - when a person hurts or tries to hurt a partner by hitting, kicking, burning, or other physical force.
• Sexual abuse - forcing a partner to take part in a sex act when the partner does not consent.
• Threats of physical or sexual abuse - the use of words, gestures, weapons, or other means to communicate the intent to cause harm.
• Emotional abuse - threatening a partner or his or her possessions or loved ones, or harming a partner’s sense of self-worth. Examples are stalking, name calling, intimidation, or not letting a partner see friends and family.
For years I covered my face or head as my wife beat on me. I tried to be quick enough to dodge what was thrown at me. I explained the marks as being “from construction jobs”. I was repeatedly told that my son would be killed if I didn't do what she said. She did this once while pointing a gun at him. The police told me there was nothing I could do. That I would have to get a protective order from the courts but they won't do it because I am a man.
The cops were correct. After I was divorced I was stalked by a female acquaintance. I was inundated by e-mails where she claimed to be my wife or said she was going to make me impregnate her. I day I clearly told her that she was not going to be my wife or the mother of a child with me. That night she went into the St Vincent's Stress Center. Upon her release she filed a Petition for an Order of Protection against me.
During the next two and a half years before we went to court she broke into my house twice, my neighbor chased her off, the police told her to leave me alone, she moved into the house on the other side of the one next to me, followed me nearly daily and came into a friends house and stole money from my wallet. Yet, Judge Detamore, who has long been known as being corrupt, would not issue a restraining order to keep her away from me.
However, at our hearing before Judge Kincaid [Boone County's only legitimate judge] she admitted that the rape allegation she made against me was false. That she had followed me. That she moved to live much closer to me. In the civil suit I filed against her for harassment her attorney begged me not to take this before a jury. I just wanted to be left alone so I settled with her for reimbursement for some of my attorney fees and an apology letter for the false allegations.
There can be no doubt that false allegations do exist and that there is a policy by judges, prosecutors and police to ignore violent acts committed by women against men. I have experienced it, repeatedly. Although radical feminists use spurious official sounding studies or simply repeat unsubstantiated claims about the non-existence of false allegations by women and that DV only affects men you have now seen the cited evidence and witnessed one of these so-called DV victims in action. These clearly contradict those myths.
Domestic Violence is real, but is not a gender issue. DV needs to be addressed in a gender neutral manner. Only then can real remedies to DV be implemented. Until this happens women's cries of abuse will continue to be nothing more than the sound of a car alarm going off; something we endure, without concern, while waiting for it to shut up.
1 - Department of Justice, Bureau of Justice Statistics. Homicide trends in the
United States [online]. [cited 2006 Aug 28]. Available from URL:
2 - Daniel Whitaker, PH. D. Journal of Public Health May 2007
3 - Angela Gover, University of Florida criminologist. Study of 2,500 students between August and December of 2005 found that 58% of stalkers were female.