Indiana Legislative Advisory Committee recommends joint legal child custody

The final meeting of 2009 for the Indiana Child Custody and Support Advisory Committee of the Indiana General Assembly got underway shortly after 10:00am and last until about 12:30. Previous meetings were held on 25 September, 02 October and 16 October. By statute the Committee is limited to meeting four times during the session.

The Committee passed two preliminary drafts after amending one. One involves great-grandparent visitation and the other seeks to modify Indiana's Paternity Affidavit. The Committee also recommended adding stronger language to the statute limiting noncustodial parents parenting time.

The Committee passed two preliminary drafts after amending one. One involves great-grandparent visitation and the other seeks to modify Indiana's Paternity Affidavit. The Committee also recommended adding stronger language to the statute limiting noncustodial parents parenting time.

The meeting opened with testimony by Cynthia Longest, Deputy Director Department of Child Services, Child Support Bureau, who provided a child support legislative gap analysis detailing the level of compliance with federal mandates. Among some of the findings are that Indiana rates 41st in the establishment and collections of child support payments, has incoming withholding orders in about 60% of cases compared to 70% nationally and that Indiana lacks some necessary definitions in regards to medical support. Ms Longest will be providing a copy of her analysis to me once it is completed. I will report on it fully then.

PD3213 - Grandparent and great grandparent visitation
This proposed legislation would grant to great-grandparents the same standing to seek visitation rights as currently stands for grandparents. However, the proposal also expands the cause of action to allow suit to be filed against intact families. The Committee approved the proposal with Judge Vorhees and Robert Bishop, Title IV-D representative, voting against the proposal as written.

Judge Vorhees felt that the proposal would potentially invite a flood of litigation from any grandparents or great-grandparents who simply has a disagreement with the parents of the children they are seeking to have visitation time with. Robert Bishop felt that an attorney fee provision should be added since most older people have greater financial resources than the parents of the child whom a visitation order is being sought against.

IC 31-17-4-2 - Modification or denial; restriction of parenting time rights
Attorney Michael Red who does not practice family law but has not seen his children in a year testified about I.C. 31-17-4 -2.
"The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent's parenting time rights unless the court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development."

Red stated that the use of the word "might" allows a custodial parent, such as his ex-wife who has engaged in a thirteen year campaign of parental alienation, to pursue litigation to deny his access to his children without any finding that he has done anything wrong.

The Committee had discussion about this and during that discussion the issue raised by Red about attorney fees was discussed. With the use of the word "might" a noncustodial parent could be required to regularly defend against malicious attacks by the custodial parent without financial consequences for bringing a frivolous action because the standard of might allows for any allegation to be adjudicated without being determined as malicious or frivolous since nearly any act "might" endanger a child.

The committee unanimously endorses adding "clear and convincing" language to statute in place of might. Since there was no specific legislation before the Committee this is only a recommendation. We will be seeking to get a sponsor for a bill to amend I.C. 31-17-4 -2.

PD3275 - Paternity affidavit modification
The meat of the meeting focused on the Indiana Paternity Affidavit and is considered to be a substantial step in the direction of making Indiana a more child-friendly state.

Robert Monday has been pushing for changes in the paternity affidavit for years. Currently the affidavit provides that when a man claims paternity of child the woman has all legal decision making authority and full physical custody.

Attorney Chris Worten provided significant testimony about the paternity affidavit during the 16 October meeting. Don Chavis of Indiana Custodial Rights Advocates provided testimony about paternity along with Robert Monday and others.

In my written materials that I provided to the Committee prior to this meeting I included the following about paternity:

The paternity affidavit should establish that both parents have joint legal custody of a newborn child the same as if they were married. There should be a presumption of physical custody at the Guideline minimums even though it would not be appropriate in some cases.

Currently there are safeguards in place that protect children from abusive parents. Under Indiana law any person is required to report suspected abuse or neglect of a child. Hospital staff are the first line of defense for a newborn child. There is a long history of involvement by Child Protective Services when a child is born to a mother who is currently abusing drugs or otherwise endangering the child. Equally there is involvement when a father is shown to be abusive to the mother or child.

I feel that it is important that all children have declared parents whether they are biological to the child. The State of Indiana should require that a mother name a father of the child when one has not come forth to voluntarily sign a paternity affidavit. This should be done with the objective in mind of involving the father in the child's life not just for the purpose of obtaining financial support and policies should reflect that.

Robert Monday asked the Committee members that if they say they support having gender neutral laws then why would they oppose mandating that both parents named on the paternity affidavit have joint legal custody. Senator Brent Waltz explained that he considers the current provision providing legal and physical custody to be an extension of the status that the mother maintained during gestation. I respectfully disagree with Senator Waltz assessment of parental responsibility though. Among married parents both have joint legal and physical custody at birth. Either parent may make medical decisions.

Representative Vanessa Summers was surprised to learn from some of us in the audience and attorney legislators that a father named on a paternity affidavit cannot take his child for medical services and make those decisions without a court order. The committee had further discussion about application of the affidavit and who would be affected.

Gregory A. DeVries, the Custodial Parent representative, mentioned that the paternity affidavit is an agreement between the parents and suggested the issue that parenting time for the father be established at the Indiana parenting Time Guidelines minimum. After additional discussion which included Judge Vorhees saying that both parents should share parenting a vote was taken.

The Committee unanimously approved the paternity affidavit proposal with an amendment that established that both parents would have joint legal custody and that fathers would have parenting time at the guideline minimums.

Now that we have the recommendations and approval of two proposals we need to start working on getting sponsors for specific legislation. I believe we have a Committee that is dedicated to making Indiana a more child-friendly state. The decision to make joint legal custody the default status for parents signing a paternity affidavit and changing the standard to restricting parenting time to be by clear and convincing evidence is substantial.

It is the eventual goal of the Indiana Custodial Rights Advocates that joint legal and physical custody be the default arrangement in all parenting actions. We would also like to see that findings and conclusions be a part of all custody orders and that the clear and convincing standard be expanded to all custody actions.

While momentum is in our favour we need let every legislator know the recommendations of the Committee and that they should support specific legislation that will be introduced in the upcoming session.

I will be meeting with legislators regularly for the remainder of the year so we have bills ready to introduce in January. If you call, send an e-mail or post a letter to your State Senator and Representative asking for support of our bills please contact me.



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Council member restrained by police during meeting while challenging citizen to step outside for a fight

The Thorntown Council Meeting held Monday 26 October 2009 didn't take long to turn to mayhem. About 30 members of the community, four police officers, four council members and administrative staff were in attendance.

The meeting opened with an announcement that former Town Attorney Carlyle Gerde had died and his partner Mary Russell would take over at least until the end of the year. Council member Eric Smith submitted notice that he will not be available for the next 8-9 months.

Regular business was conducted which was quite minimal and then the agenda turned to community members who had asked to speak.

Park Board President Cheryl Toney was on the agenda but was unavailable so the council chose to continue Park Board matters until the next meeting. Toney has complained previously that Town Council President Pat McPeak had been getting paid to do work at the park including cutting trees after a storm and repairs on a building using his "construction" company without Park Board approval. She says the total paid to McPeak is $140,000.

Stuart Showalter discussed the need to select a town attorney in a public forum. Interim attorney Mary Russell began complaining to Showalter that matters involving pending litigation was not going to be discussed. Showalter continued to talk about why the selection for a town attorney should be done at a public meeting. Russell continued to try to talk over him.

Although Showalter does have pending litigation with the town he felt that the proper procedures used in selecting a person to fill a town position are irrelevant to current litigation. Showalter proposed that the town should give citizens or taxpayers the opportunity to speak at a public meeting either in support of or against any prospective attorneys for the town and why that is needed. Pat McPeak then started talking about prior and ongoing litigation with Showalter. Showalter retorted by asking if it was now going to be that Russell says that he can't talk about litigation but it is fine for McPeak or the council to say what they want about it.

He also suggested that the town contact the Disciplinary Commission of the Indiana Supreme Court to investigate the background of prospective town attorney applicants. He then noted that such investigation would have revealed the discipline against former attorney Gerde and that there was additional information about Gerde in the public forum.

Pat McPeak starting challenging Showalter as to why he should be believed when he is a convicted felon. Showalter, who claims that he presented information to the council in January 2007 about Gerde's over-litigating cases and that it doesn't matter whether he has a felony conviction because the matters presented are public record. It was other court who made findings that Gerde had engaged in fraud, theft, forgery, misrepresentations to the court, robbery and many more illicit acts.

Council members also contended that the town had never sued Showalter but had won. However, Showalter had been named as a defendant in a lawsuit filed by the "Town of Thorntown" in cause number 06D02-0703-OV-0286. That suit was dismissed two days after Showalter served subpoenas duces tecum, which require the named person to produce particular documents to the court, on Pat McPeak and former Council President Gary Jones. This was nearly two years after the suit was filed in response to Showalter posting a sign challenging sitting council members running for re-election. Showalter has filed a federal civil rights lawsuit against the town and various officials for the two years of ongoing harassment over his political speech.

The meeting took a very interesting turn when one board member said he had had enough and challenged Showalter to step outside and fight. The tirade continued for a few minutes while Showalter instructed the member that his behaviour was inappropriate for an elected representative. One of the police officer restrained the council member.

The floor was opened to comments or questions from the community. A town resident complained that McPeak's company had done no bid municipal projects in violation of competitive bidding laws. He further claimed that there are criminal penalties for doing so. Pat McPeak responded by asking the man if he was calling McPeak a criminal. The resident responded that he guesses he is.

The next meeting is scheduled for 16 November 2009.

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Judge Rebecca McClure admits complicity in covering-up child sexual abuse

In July 2006 I first publicly displayed knowledge of a child sex ring operating in Boone County Indiana which involved a Western Boone High School [WEBO] administrator, the Thorntown Police Department, The Indiana United Methodists Children's Home [IUMCH], Boone County Prosecutors and a Judge among others. Thorntown Council President Gary Jones became very agitated upon learning of this. Jones immediately hired Lafayette Indiana attorney Carlyle Gerde, recently deceased, to sue me using taxpayer funds. Although Jones cited other reasons during public meetings [minutes Thorntown Council 20 August 2007] he stated the real reason in court [tr. p.198 06D02-0703-OV-0285].

The existence of the sex ring is well-documented through recordings, witness statements and court records. The WEBO assistant principal, Jerry Taylor, resigned abruptly following the conclusion of the 2004-2005 school year after he was accused of a sexual assault in April of 2005 and admitting to it in a recording made by an assistant of mine. Taylor also alleges that a scheme involved Judge Steve David incarcerating students as "extra punishment". One victim described this as for those who didn't acquiesce to Taylor's desires.

In September 2005 a girl who attended WEBO, age 15, was arrested and taken to the Boone County Jail by Thorntown Police Officer Frank Clark. She was later sent to IUMCH. Upon receiving knowledge that she had sent a letter to me about the incident Boone Circuit Judge Steve David placed a No Contact Order [06C01-0509-JS-0307] on the girl to keep her from providing additional information to me. I then filed a public records request seeking information about the incident at the jail. Boone County deputy prosecutor Bruce Petit asked Judge David for a protective order so the prosecutor's office would not be required to comply with the request. Eventually I sued the prosecutor, Todd Meyer, for the records [06D01-0512-MI-0398] but Judge David dismissed the case to protect Meyer.

In August 2005 in an unrelated felony case Meyer sought to have my subpoena of him and his chief deputy quashed because they alleged their testimony would be embarrassing. The charge was dismissed in January 2007 but I filed a Motion to Reinstate the charge which Judge David denied. So much for the right to a trial by jury.

In November of 2005 David placed a No Contact Order on me to keep me from receiving information from the alleged victim. In February 2006 I was again arrested and this time charged [06C01-0602-CM-0034] with allegedly violating that order. In February 2007 when I confronted prosecutor Meyer in the courthouse and told him I would whip him in court the charge was dismissed that day.

In June 2007 I filed a public records request with the Town of Thorntown seeking complaints against police officers for alleged inappropriate contact or stalking of females in town. Officer Clark had already been ordered in the Spring of 2005 not to patrol in the area near my home where he had been accused by a neighbor of stalking. I had since received additional complaints. Thorntown Town Attorney Carlyle Gerde complained to Judge McClure that he didn't want to be required to comply with the request. McClure then ordered that I was to send public records request for the Town of Thorntown to her for approval. [06D02-0703-OV-0285, 13 June 2007].

Both Thorntown and McClure have been sued for violations of the public access law [06D01-0802-MI-0076] after a favorable ruling for me by the Indiana Public Access Counselor. The matter is set for final hearing in November 2009 after Gerde unsuccessfully argued that the case should be dismissed because I "wouldn't be allowed to sue if the law was the way [Gerde] wanted it."

Caleb Jones, age 20, son of Gary Jones was arrested and charged [06D02-0809-CM-0946] in September 2008 for a knife assault on his mother after she would not let him shower at the same time as a younger sibling which is reported to be his sister who attends WEBO.

In November 2008 Stephanie Rogers, age 36, Anderson, was sentenced to seven years incarceration for sexual misconduct with a girl, age 15, from IUMCH where Rogers worked.

In October 2009 Judge McClure recused from a case involving me in which she said she had learned of information that I published about her which she alleges is untrue. McClure cited that because she learned of the alleged untrue information that she must recuse from the case. In 2008 in a pleading before McClure seeking her recusal I alleged "complicity of the Court in trying to cover-up child sexual abuse" among other allegations of bias and prejudice. McClure did not recuse then establishing that the allegation of her involvement was true.


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Judge McClure concedes but doesn't step down . . . YET

In a protracted and on-going battle, Boone Superior Court II Judge Rebecca McClure has sought to prevent the public from accessing public records of the Court and a local town. Much of it has to do with her relationship to Boone County Prosecutor Todd Meyer and former Thorntown Attorney Carlyle Gerde who is now deceased.

Now a lawsuit is being prepared against McClure for defamation, a Verified Motion to Seal the defamatory document produced by her has been filed, and preparations for the filing of a request for investigation with the Judicial Qualifications Commission are being made which includes a request for an audio copy of the 08 October 2009 hearing in which McClure said I was "wasting the Court's time" pursuing an appeal of McClure's unlawful order to seal a court pleading.

In 2005 I starting raising an issue with Todd Meyer holding a fire victim in jail for allegedly burning down the building he lived in. Meyer also charged his girlfriend as an accessory for "hiding" him at a local hotel under his real name which she told investigators about. Eventually a grand jury found that neither had anything to do with the arson and another man is currently in prison for it.

Meyer tried to blame his fiasco on the girlfriend and charged her with false reporting saying that if it wasn't for her he would have never charged either of them. A jury didn't see it that way and acquitted her in under an hour. Although it was admitted in open court during the December 2007 trial that I was acting as legal counsel to her and was not needed as a witness, McClure ordered me out of the courtroom for the proceedings anyway.

I then sought access to the court proceedings through a public records request which McClure initially denied. After I made a complaint to the Public Access Counselor she then conceded but issued stringent guidelines for my review of the record in violation of the APRA

Earlier in 2007 I was involved in litigation in the Boone Superior Court II after the Town of Thorntown sued me over posting signs about elected officials including Todd Meyer, Judge David and the town council. In that cause McClure ordered that I was not to send public records requests to the Town of Thorntown. As it was my legal right to do so I continued sending requests which Thorntown continued to ignore. Town Attorney Carlyle Gerde filed this Report to the Court detailing such. I then filed my response and McClure backtracked but not enough. I then filed a Motion to Vacate the Order. McClure never did enforce the order.

The case got active again recently after I was provided with documents from the Thorntown Police Department that clearly demonstrated that former Thorntown Marshal Jeff Woodard, former Council President Gary Jones and then town attorney Carlyle Gerde had all lied during trial. I filed a Rule 60(B) Motion to have the judgment set aside based upon fraud.

Gerde filed a response including a Motion to Seal seeking to have the Rule 60(B) motion sealed. About a week later McClure sealed the record without giving me a chance to respond. Additionally McClure was to allow the public an opportunity to contest the denial of their access to the record.

A filed a Response to Plaintiff's Motion to Seal within the time period establish by court rule. I also filed a Notice of Appeal of the Order to Seal. McClure, knowing I was correct, unsealed the record. I then filed a Motion to Withdraw Notice of Appeal.

With the truth coming out and uncertainty about Thorntown's ability to find another corrupt attorney who will collude with McClure to maintain secrecy of these matter McClure filed an Order of Recusal. In that Order though McClure unnecessarily defamed me in an attempt to turn public sentiment against me and influence any judge who may view the case in the future. I have filed a Verified Motion to Seal Order of Recusal.

Additionally I will be filing suit against McClure in her personal capacity for defamation since the defamatory comments were made in excess of anything necessary to the Order. I hesitate to use the word finally so I will say that I will also be filing a request for investigation with the Judicial Qualifications Commission after I get a copy of the recording of the hearing in which McClure said I was wasting the Court's time. If the past is any indication of the future I will have to file suit to get the records to present to the Commission.

It's likely far from over and I didn't start it but I will end it.

Most of the documents referred to may be viewed here.

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Hendricks Circuit Judge Jeffrey Boles Contempt of Law

Our Founding Fathers sought to avoid the tyranny of a despot be it one who sat in the executive or the judicial branch. In reality, a despot often sat as both.

Hendricks County in central Indiana has had it's own despot for many years. Judge Jeffrey Boles of the Hendricks Circuit Court is that despot. Boles has brought dishonour to the bench through intimidation of lawyers, politicians and litigants but does not intimidate this writer.

On 05 February 1990 the Indiana Commission on Judicial Qualifications initiated proceedings and charged Boles with two counts of misconduct.

Count I -

That while serving as Judge of the Hendricks Circuit Court, Boles engaged in willful misconduct in office, conduct prejudicial to the administration of justice, and conduct violating Canons 2, 3, and 7 of the Code of Judicial Conduct. In its charging complaint the Commission set forth its supporting information.

The basis of this charge involves fees charged by the public defender system and the process by which reimbursements are made to the County for pauper counsel.

Attorneys John Pierce and Kevin Hinkle were partners in a Danville law firm that employed attorney Philip Gundlach. Additionally Hinkle served as a member of the Henricks County Council.

On or about 26 October 1988 Gundlach was appointed by Judge Boles to represent Robert Woolf who was a juvenile charged in a delinquency proceeding. While this charge was pending a separate criminal charge was filed against Woolf.

The delinquency charge was set to be heard on 21 November 1988 but Judge Boles, over the objection of the defendant, reset the trial for December. However, the next day Judge Boles dismissed the charge.

The following day Gundlach, the attorney for Woolf, submitted his claim for legal services provided and expenses. The claim set forth 43.2 hours plus $22.80 in direct costs. The usual reimbursement rate for public defenders was $35 per hour. The total claim was $1534.80.

On 30 November 1988 Judge Boles entered an order that the County was to pay $322.80 to attorney Gundlach with the balance to be paid by Woolf's parents even though Woolf had been adjudicated a delinquent. Boles then entered a judgment of $1212 against the parents in favor of Gundlach. No hearing was conducted to determine if Woolf's parents had the ability to pay the attorney fees.

Indiana Code 31-6-4-18 [now 31-40-1-3] provided that a parent could be held financially responsible for the legal defense costs of their minor child if the court determined that the parents had the ability to pay and that it was in the interest of justice. The law further provided that the attorney is to be paid by the County and then the parents or guardians are to reimburse the county if ordered to do so.

The reimbursement provision ensures that attorneys will serve as public defenders at a reduced rate knowing that their pay is guaranteed and they will not have to suffer administrative costs in trying to collect on a judgment or have the judgment discharged in a bankruptcy proceedings. This ultimately saves taxpayers a considerable amount of money.

Two days later Pierce, the partner who employs Gundlach, sent a letter to Judge Boles objecting to the 30 November 1988 order. On 05 December 1988 Boles retaliated by vacating the order and ordering the County Auditor to return all claims for payment in the matter. Two days later Pierce requested that the prosecuting attorney, David Coleman who now sits as a Superior Court judge, examine Boles actions with a view towards criminally prosecuting him.

In the foregoing criminal proceeding against Woolf he was found guilty and Judge Boles ordered that his parents were to pay attorney fees directly to counsel for the criminal cause, Harold Blake.

At the December 1988 Hendricks County Council meeting councilman Hinkle, who is the partner in the firm that hired Gundlach, raised the issue of the legal mechanism by which pauper attorney fees are to be paid. The matter was referred to the County Attorney, Steuerwald.

On 22 December 1988 Prosecuting Attorney David Coleman advised attorney Pierce, the partner of Hinkle, that he found no illegal conduct in the payment of fees directly to attorneys rather than the County as required by law.

On 27 December 1988 attorney Blake billed to the parents of Woolf $3690 for his attorney fees in defending their son.

On or about 19 January 1989 Robert Woolf, Sr. filed a complaint with the Commission relating to the conduct of Judge Boles in the juvenile proceedings involving his son. About two weeks later Woolf paid half the bill to attorney Blake as a settlement for the full fee.

On 14 February 1989 Gundlach filed a motion seeking to resolve the issue of his unpaid legal fees. Judge Boles, without a hearing to determine Woolf's ability to pay, found that the parents could pay and ordered that "under no circumstances will the taxpayers of Hendricks County be required by the Court to pay legal costs on the extraordinary bill submitted by Mr Gundlach."

On or about 4 April 1989 attorney Gundlach was granted an emergency Writ of Prohibition by the Indiana Supreme Court prohibiting Judge Boles from enforcing in any fashion the order of which Gundlach complained. The writ was later made permanent. 10 days later Gundlach filed a Motion to Correct Error in the proceedings involving Woolf.

On 24 April 1989 Judge Boles entered "Findings of Fact, Judgment and Order of the Court". In there he denied Gundlach's rightful claim for attorney fees at the then prevailing rate of $35 per hour by declaring:
"Requiring the citizens of Hendricks County to pay this extraordinary bill would allow Robert L.K. Woolf and Philip L. Gundlach to cheat the taxpayers and steal from the public and put the control of payment of attorney fees out of the hands of the Hendricks County Council."

That Judge Boles then placed the burden upon the taxpayers of the State of Indiana to pay the costs of an appeal in which Boles was instructed by the Indiana Court of Appeals to vacate the orders of 30 November 1988 and 14 February 1989 which related to the attorney fees requested by Gundlach.

The Commission based it's charge as follows:

That through the 30 November 1988 order directing that pauper counsel fees be paid directly to attorney Gundlach that Judge Boles did "engage in willful misconduct in office; engaged in conduct prejudicial to the administration of justice; failed to respect and comply with the law, and conducted himself in a manner that does not promote public confidence in the integrity and impartiality of the judiciary in violation of Canon 2A of the Code of Judicial Conduct; failed to be faithful to the law and be unswayed by partisan interest, public clamor or fear of criticism in violation of Canon 3A(1) of the Code of Judicial Conduct; and failed to provide every person who is interested in a proceeding full right to be heard according to law as required by Canon 3A(4) of the Code of Professional Responsibility."

That by entering the order directing Woolf to pay pauper fees directly to attorney Blake for representation of Woolf in the criminal proceeding Judge Boles "engaged in willful misconduct in office; engaged in conduct prejudicial to the administration of justice; failed to respect and comply with the law, and conducted himself in a manner that does not promote public confidence in the integrity and impartiality of the judiciary in violation of Canon 2A of the Code of Judicial Conduct; lent the prestige of the judicial office to advance the private interest of another in violation of Canon 2B of the Code of Judicial Conduct; and failed to be faithful to the law and be unswayed by partisan interest, public clamor or fear of criticism in violation of Canon 3A(1) of the Code of Judicial Conduct;

That by entering the order of 14 February 1989, when Judge Boles said that in no way would the taxpayers pay the extraordinary bill submitted by Gundlach that Boles "engaged in willful misconduct in office; engaged in conduct prejudicial to the administration of justice; failed to respect and comply with the law, and conducted himself in a manner that does not promote public confidence in the integrity and impartiality of the judiciary in violation of Canon 2A of the Code of Judicial Conduct; failed to be faithful to the law and be unswayed by partisan interest, public clamor or fear of criticism in violation of Canon 3A(1) of the Code of Judicial Conduct; and failed to provide every person who is interested in a proceeding full right to be heard according to law as required by Canon 3A(4) of the Code of Judicial Conduct."

That when Judge Boles directed attorney Gundlach to provide affirmations of certain acts by other individuals Boles "engaged in willful misconduct in office; engaged in conduct prejudicial to the administration of justice; failed to respect and comply with the law, and conducted himself in a manner that does not promote public confidence in the integrity and impartiality of the judiciary in violation of Canon 2A of the Code of Judicial Conduct; failed to be faithful to the law and be unswayed by partisan interest, public clamor or fear of criticism in violation of Canon 3A(1) of the Code of Judicial Conduct; and failed to be dignified and courteous to individuals with whom he deals in his official capacity as required by Canon 3A(3) of the Code of Judicial Conduct."

That by entering the order of 24 April 1989 when Judge Boles said that attorney Gundlach cheated and stole from the taxpayers, and having determined that Woolf would be liable to pay his son's attorney fees without having held a hearing on the matter Boles "engaged in willful misconduct in office; engaged in conduct prejudicial to the administration of justice; failed to respect and comply with the law, and conducted himself in a manner that does not promote public confidence in the integrity and impartiality of the judiciary in violation of Canon 2A of the Code of Judicial Conduct; failed to be faithful to the law and be unswayed by partisan interest, public clamor or fear of criticism in violation of Canon 3A(1) of the Code of Judicial Conduct; failed to be dignified and courteous to individuals with whom he deals in his official capacity as required by Canon 3A(3) of the Code of Judicial Conduct; and failed to provide every person who is interested in a proceeding full right to be heard according to law as required by Canon 3A(4) of the Code of Judicial Conduct."

Judge Boles through his overall conduct demonstrated the use of the judicial office for political objectives and by such conduct he "engaged in willful misconduct in office; engaged in conduct prejudicial to the administration of justice; and engaged in political activity which did not involve measures to improve the law, the legal system or the administration of justice in violation of Canon 7A(4) of the Code of Judicial Conduct."

The Commission made its recommendation to the Indiana Supreme Court on 13 March 1990 which included the following statements;

* * * He misused the power of his office, displayed a lack of judicial temperament, and engaged in improper political activity in his crusade on behalf of "taxpayers".

Judge Boles constant representation in his Orders and entries that he was the representative of the Hendricks County taxpayers against the greed of Gundlach can be seen only as a thinly disguised campaign tactic.

The language in this Order reveals not only Judge Boles' tendency to follow his own law, but illustrates that his current judicial temperament and demeanor warrant discipline. * * *

The Commission recommended that Judge Boles be suspended for a period of not less than 3 months and not more than 6 months.

Count II -

That while serving as Judge of the Hendricks Circuit Court, Boles engaged in willful misconduct in office, conduct prejudicial to the administration of justice, and conduct violating Canons 2, 3, and 7 of the Code of Judicial Conduct.

Between 1985 and 1988 Judge Boles had an ongoing dispute with the Hendricks County Commissioners about the conduct of meetings. Particularly he objected to the practice of not publishing an agenda prior to the meetings.

On or about 18 August 1988, on Court stationery, Judge Boles wrote to the Commissioners and stated that their action on 15 August 1988 approving the purchase of certain property violated the Open Door Law. On 08 September 1988 Boles wrote a similar letter in which he purported to represent the citizens and taxpayers of Hendricks County. During this time there was no matter before the Court involving the Commissioners.

That contemporaneous to the second letter Boles filed a Lis Pendens Notice for the property in question which clouded its title.

The Commission based it's charge as follows:

By interfering with the duties of the County Commissioners and directing their activities without a proper proceeding before the court Judge Boles "engaged in willful misconduct in office; engaged in conduct prejudicial to the administration of justice; conducted himself in a manner that does not promote public confidence in the integrity and impartiality of the judiciary in violation of Canon 2A of the Code of Judicial Conduct;
failed to be unswayed by partisan interest, public clamor or fear of criticism in violation of Canon 3A(1) of the Code of Judicial Conduct; publicly commented on a matter which reasonably might be litigated in his court in violation of Canon 3A(6) of the Code of Judicial Conduct; and engaged in political activity which did not involve measures to improve the law, the legal system or the administration of justice in violation of Canon 7A(4) of the Code of Judicial Conduct."

The Commission made its recommendation to the Indiana Supreme Court on 13 March 1990 which included the following statement;

* * * Finally, although not charged in the complaint, his filing of the Lis Pendens Notice on behalf of the taxpayers constituted a violation of the prohibition against the practice of law. * * *

Judgment -

On 20 June 1990 the Court entered its judgment of discipline against Boles. The opinion was delivered by Chief Justice Shepard with DeBruler and Dickson concurring.

Following are some excerpts from that decision.

After forebearing a long history of disruptive behavior by Jeffrey V Boles, Judge of the Hendricks Circuit Court, the Indiana Commission on Judicial Qualifications initiated formal charges against him alleging two recent violations. After initially denying that his actions were wrong in any way, Respondent Boles has now admitted that he committed misconduct and filed a written apology for his actions. Respondent and the Commission have proposed to this Court a sanction of sixty (60) days suspension without pay.

It also shows that the Respondent has ordered prisoners executed without appeal, granted probation to a convicted murderer though Indiana law prohibits probation for murderers, and frequently uses his office to intimidate citizens and lawyers for his own personal purposes.

Suspending Respondent for sixty days without pay is the highest sanction actually imposed by this Court in fifteen years.

Clearly it is the County's responsibility to first pay attorney fees. If the juvenile is found to be delinquent, the judge may then, after fair hearing regarding finances of the parents, require repayment to the County. Because of Respondent's dismissal of the charges, the juvenile could not be found delinquent, and the parents cannot be required to repay the County.

. . . yet he chose to ignore and defy the law. Such conduct is not appropriate because it destroys the public's confidence in the integrity and impartiality of the judiciary.

"These actions were compounded by Respondent's clear efforts at retaliation for what he perceives as a challenge to his authority." - Indiana Supreme Court's Order suspending Boles for 60 days.

Boles misused the power of his public office, displayed a lack of judicial temperament, and engaged in improper political activity in his crusade to portray himself as a 'taxpayers' hero.

Respondent's misconduct in this regard was compounded by the fact that his order to Gundlach directed Gundlach to ratify or reject the filing of a judicial discipline complaint by the juvenile's father. We view the Respondent's order as an impermissible attempt to interdict the Commission's lawful authority.

Respondent's repeated assaults on the County Commissioners for violations of the Open Door Law by not having an agenda falsely stated the law and Respondent knew it.

The obligation of a judicial officer is to uphold and apply the laws, not to defy them, and not to enact them. The judiciary is no place for one who wishes to make the law into his own hands. The making and changing of public policy, no matter how well intentioned, is primarily a legislative, not a judicial function.

The Respondent has injudiciously attacked a variety of litigants, attorneys, and public officials, often without legal or moral justification.

Dissent

PIVARNIK dissents in which GIVAN concurs.

"I respectfully dissent to the opinion of the majority accepting the terms of the conditional agreement for discipline submitted by the Judicial Qualifications Commission and Judge Boles which results in his suspension from office for a period of two months without pay, because I find such sanction to be inappropriately lenient.

It is apparent from the facts agreed to by all parties involved that the Respondent refuses to conform his conduct to that appropriate for judicial office. It would be my vote that he be removed from office."

Commentary

It is apparent that Judge Boles has brought disgrace and shame to the judiciary. It is for the very reasons articulated by the Court's opinion in this matter and the abuse of power demonstrated by Boles that the public loses confidence in the judiciary.

I will have much to say in the future about Boles as I gather more information on him. Although he may have shed a few crocodile tears and given a Hollywood scripted apology his abuse of power has not diminished. If the public records I have requested are made available to me you will get to see and hear more of Boles abuses.

Included is the unlawful use of his judicial power to assist in the abduction of a child.

Judge Boles needs to be removed from office just as Justices Pivarnik and Givan rightfully voted to do nearly twenty years ago. It is incumbent upon the voters of Hendricks County to fulfill their obligation to ensure that they elect a representative for the court that has respect for the law.

Judge Boles does not have respect for the citizens, litigants that come before him or the law. There is a reason he received the harshest sanction handed out in fifteen years.


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©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Amending Indiana's Parenting Time Guidelines, Paternity Affidavit and more

I attended the Indiana General Assembly's Child Custody and Support Advisory Committee [CCSAC] meeting today and then went to the Domestic Relations Committee [DRC] meeting, already in progress, at the Indiana Judicial Center.

At the CCSAC meeting I met Mr and Mrs Meadows of Bedford, Indiana who spoke in favour of a great-grandparent visitation statute. They have been estranged from their two great-granddaughters because of the husband of their granddaughter. There is currently a legislative proposal to allow for great-grandparents to seek visitation orders similar to that of grandparents. There was discussion about the language in the proposal as to meaningful relationship and other factors used to determine who may petition the court for a visitation order. Audience member Daniel Beatty reminded the Committee of the requirements set forth by the USSC in Troxel v Granville. The Committee determined that the proposal could not apply to all great-grandparents but would have to include only those that had an existing relationship with the children.

Mr. Chris Worden, a family law attorney in Indianapolis, made an excellent presentation to the Committee about the problems with Indiana's paternity affidavit. The discussion following his presentation touched upon all areas that I had intended to speak about so I did not provide any testimony at this meeting.

I will be meeting with one of the Senators before the next meeting to work on some legislation involving paternity and contempt of court in child support cases.

Next I proceeded to the Indiana Government Center to search for some records before heading to the DRC meeting. The DRC was working on application of the Child Support Amendments to the Child Support Calculator. A presentation to judges is planned for a seminar on 19 November followed by a public meeting. Mr. Jeff Bercovitz, Director, Juvenile and Family Law, Indiana Judicial Center said that the DRC next plans to start working on modifying Indiana's Parenting Time Guidelines. I do plan to provide input to the committee throughout the entire process of amending the Guidelines.

The DRC will provide opportunities for public input through the taking of personal testimony as well as submission of written material. The Committee does take input from some professionals and advocates during some of the regularly scheduled meetings.

I also spoke with Ms. Cynthia Longest, Deputy Director of the Child Support Bureau, Department of Child Services about child support enforcement. Ms Longest regularly attends the CCSAC and DRC meetings. I hope to receive input from her about child support enforcement proposals that I intend to have introduced in the upcoming legislative session.

Anyone who would like to participate in amending the Guidelines or participating in lobbying for more child-friendly laws in Indiana please contact me. If you would like to receive notice of all meetings please go to our homepage and enter your e-mail address and zip code.


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This side Up?

Well the idiocy of our commercial enterprises has set me off again because I saw a movie last night that was formatted to fit my screen even though I had no intention of that.

As human beings we marvel at and praise ourselves for all of our scientific advances. We can create health problems and then come up with a treatment almost as quickly. We can create warehouses full of useless data and thumbdrives to store it on. We can watch movies in a digital format on a disc which we could conveniently store 50 of in a sandwich bag. Try doing that with the old movie-house reels that measure about two feet in diameter.

40 years ago, on 20 July 1969, we even landed men on the moon although some would argue it never happened. Regardless, we knew up from down then . . . or did we? Think about this for a moment. When the Apollo 11 mission took off on 16 July 1969 carrying Neil Armstrong, Buzz Alrdin and Michael Collins did the rocket go up to the Moon or down to the Moon. After all, the Earth is rotating, while orbiting the Sun which is on a rotational plain in the Milky Way Galaxy which is drifting through space while the Moon orbits the Earth.

On our solar plane the Earth sits with a 23.5 degree tilt. In the Summer months that tilt is towards the Sun, in the Winter away. In terms of polarity we call the magnetic pole in the Northern Hemisphere "up" and in the southern "down" as in Australia is 'down under'. In reality though polarity is neither up nor down. Does any of this have any bearing on DVD's? Are you only reading this far because it is interesting info or just out of morbid curiosity to find out where I am going with this? Wait no longer.

Consider your typical DVD player which has a tray that slides out which holds the rotating disk. If you have ever taken one apart then you are quite aware of the optic mechanism. To play your Peter the Dragon DVD you put the disc in with the colourfully painted dragon side of the disc face up with the data side of the disc face down so the upward focused optic laser may read it.

It all very simple. It is no different than looking in a mirror. You put the reflective side towards yourself to see that dazzling brilliance known as yourself. Now imagine that you had one of those arched mirrors from the Funhouse but that it was reflective on both sides. If it was produced by a DVD manufacturer then you would feel like a backwards Laurel & Hardy. The convex side, like the outside of a soda can, would be labeled "widescreen" even though you would appear as skinny as Stan Laurel while as wide as Oliver Hardy on the concave side.

Take that Pete the Dragon disk and put the label side down and you'll likely see something on the screen that says "disk read error" because that optic laser won't read paint. Take a double sided disk and play the side labeled "widescreen" and I assure you will see something like "This film has been modified from the original. It has been formatted to fit your screen" and is clearly not widescreen nor what the director or cinematographer intended. The idea that some dimwit with no film making experience can determine what is best for us to view is an absurdity. But, that is an entirely different subject which I won't go into now.

I am just horribly annoyed with having to take double sided disc out and place them back in the player upside-down. I tried for sometime to get the correct disk from stores. The trips to the stores to return the "defective" disk were usually met with a "duh, I don't get it." That's why those idiots wear a blue shirt and a plastic name-tag. The replacement disc always had the same problem. It became such a headache that I eventually gave up and quit paying over three dollars for the defective merchandise and now only get them at BigLots.

We may marvel at our 'advancements' but as far as I am concerned we haven't surpassed the cavemen yet if we don't know up from down.


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Indiana Child Support Amendments - Pt V

This is my fifth posting in a series that I am doing on the Amendments to the Indiana Child Support Guidelines that will take effect 01 January 2010. In part IV I described the effects of parenting time credits and retroactive modifications on the overall support issues.

In this section I will show the changes made to and detail the -

V - Application of Social Security payments

The first thing to note is that the entire portion of the Guidelines that previously related to Social Security income has been removed. This does not necessarily reflect that those provisions are no longer applicable. There is no change to the consideration of Social Security retirement benefits or Supplemental Security Income.

Guideline 3 which provides for the determination of child support amount in providing the definition of weekly gross income included social security benefits and veterans pensions.

Specifically excluded are benefits from means‑tested public assistance programs, including, but not limited to Temporary Aid To Needy Families (TANF), Supplemental Security Income, and Food Stamps.

Here is the new language for the Guidelines as it applies to existing Social Security payments.

Social Security benefits received for a child based upon the disability of the custodial parent are not a credit toward the child support obligation of the noncustodial parent. It is a credit to the custodial parent's child support obligation.

Social Security benefits received by a custodial parent, as representative payee of the child, based upon the earnings or disability of the noncustodial parent shall be considered as a credit to satisfy the noncustodial parent's child support obligation as follows:

Social Security Retirement benefits may, at the court's discretion, be credited to the noncustodial parent's current child support obligation. This credit is not automatic. The presence of Social Security Retirement benefits is merely one factor for the court to consider in determining the child support obligation or modification of the obligation.

Social Security Disability benefits shall be included in the weekly gross income of the noncustodial parent and applied as a credit to the noncustodial parent's current child support obligation. The credit is automatic.

Any portion of the benefit that exceeds the child support obligation shall be considered a gratuity for the benefit of the child unless there is an arrearage.

What is being said here is that when social security benefits are received by the custodial parent because of his or her disability and those benefits are for the child that those payments will not be a credit for the noncustodial parent's child support obligation. However when the custodial parent is receiving social benefits because of the noncustodial parent's disability and those benefits are for the child, those payments will be a credit for the noncustodial parent's child support obligation.

In calculating the child support payment obligation, the social security disability benefits received by the custodial parent on behalf of the child, based upon the noncustodial parent's disability, shall be considered income of the noncustodial parent for the determination of the support payment amount. When the social security payment amount exceeds that of the noncustodial parent's child support payment obligation then the excess is to be considered a gratuity to the custodial parent unless the noncustodial parent owes back support. Then it shall be applied to the past due support.

When a parent files for social security disability this does not relieve that parent from the obligation to make court ordered child support payments. As explained in Part IV a modification of support shall be granted retroactively to the date of the filing of the Petition to Modify Court Ordered Child Support Payments.

The application of social security disability payments to a court ordered child support payment arrearage can get a bit complicated. The new Guidelines contain the following provisions as it relates to arrears.

Arrearages

Credit for retroactive lump sum payment. A lump sum payment of retroactive Social Security Disability benefits shall be applied as a credit against an existing child support arrearage if the custodial parent, as representative payee, received a lump sum retroactive payment, without the requirement of the filing of a Petition to Modify Child Support. However, no credit should be allowed under the following circumstances:

A custodial parent should never be required to pay restitution to a disabled noncustodial parent for lump sum retroactive Social Security Disability benefits which exceed the amount of 'court ordered' child support. Any portion of lump sum payments of retroactive Social Security Disability benefits paid to children not credited against the existing child support arrearage is properly treated as a gratuity to the children. No credit toward future support should be granted.

No credit shall be given for a lump sum disability payment paid directly to a child who is over the age of eighteen (18). The dependency benefits paid directly to a child who has reached the age of majority under the Social Security law, rather than the custodial parent, as representative payee, do not fulfill the obligations of court ordered child support.

For a parent who applies for Social Security Disability benefits and a lump sum payment for the past period of disability goes to the custodial parent for the benefit of the children then that payment should be applied to a support arrearage. There are exceptions though.

As has been a longstanding policy there may not be a requirement placed upon the parent receiving the support to pay back any overpayment. Thus, a custodial parent receiving a lump sum payment which exceeds the arrearage may not be required to return that portion to the noncustodial parent. Instead that excess payment should be given by the custodial parent directly to the children. However, the amount of current benefits paid which exceed the current court ordered child support payment obligation may properly be treated as a credit towards a child support payment arrearage.

For those parents who have become disabled and their income has been reduced to a point where it would produce a change of at least 20% in the current child support payment obligation those parents should immediately seek a modification of court ordered child support payments.

Considering the new language added to the Guidelines and the way arrearages are treated it could be advantageous for the noncustodial to maintain or let an arrearage build rather than sell assets or borrow money to keep current of the existing excessive child support payment obligation.

If you would like an evaluation of your current child support payment order please contact me.


To ensure that you see all eight section of this child support payment series please subscribe to my blawg.


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When using Facebook can lead to prison

For my 100th edition I am not doing some in-depth expose' on child support, CPS or anything like that. I have decided to just take a break from the long hours of reading cases and analyzing them to do something funny. Today I found it. I have written about social networking sites in the past but never in this context.

I am a daily user of Facebook. I network with people around the world and keep up-to-date on the news there. I post my blawg on Facebook and look for law related stories posted by my 'friends'. I check my Facebook page often throughout the day sometimes from the homes of other people that I am visiting. This is where a distinction is made between Jonathan G. Parker, 19, of Fort Loudoun, Pa., and I.

Parker's use of Facebook has led to his arrest and possible prison term. Parker was arraigned in September on one count of felony daytime burglary. Police were led to Parker through his Facebook page. The Berkeley County Sheriff's Department responded on August 28 to the home of a woman after she reported a burglary in which two diamond rings, valued at $3500, were missing. While there she showed the officers the Facebook page that appeared on her computer. It belonged to Parker.

Apparently, while robbing the home, Parker decided to check his Facebook page. Parker had updated his status to "Gotz too hot diamond ringz for sale - bling bling - IM me". Maybe he also had to check up on his farm or do some gangsta activities in Mafia Wars. Unfortunately for Parker he didn't log out of his account and it wasn't difficult for police to locate a residence in the neighborhood where Parker sometimes stayed.

Parker faces up to 10 years in prison if convicted.


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Indiana Child Support Guidelines Amendments - Part IV, Parenting Time Credit

This is my fourth posting in a series that I am doing on the Amendments to the Indiana Child Support Guidelines that will take effect 01 January 2010. Part III briefly described the definition of weekly gross income, adjustments and minimum support. Part IV details the following;

Part IV - Changes applicable to Parenting Time
A. Parenting Time Credit
B. Equal parenting time
C. Retroactive modification

A. Parenting Time Credit

It never seemed appropriate that when a noncustodial parent has a bedroom for the child, provides education materials, and also has clothing items and toys equal to those at the custodial parent's house that it is not acknowledged by the court in a credit towards support payments. The Guidelines had previously provided that "[t]he court may grant the noncustodial parent a credit toward his or her weekly child support obligation" for these duplicated expenses.

Such credit was to be applied based upon the child support calculation worksheet. They way I have understood this is that a noncustodial parent may argue that X amount of dollars are spent on these duplicated expenses. If he or she is the earner of 60% of the income then that parent would receive a credit of 40% of those duplicated expenses.

The Amendments provide for one small but substantial change. The word "should" has been added. This is one degree shy of "shall" which is a mandate. This means it still must be demanded. You or your attorney must be aware of this before proceeding in a support modification hearing.

A petitioner seeking modification of a child support order must still meet either the “substantial and continuing” change test or the twenty percent change test to be successful. But the petitioner may apply the parenting time credit to attempt to fulfill either test.  It is not a foregone conclusion that in every case, or even in most cases, that the application of the parenting time credit would result in the fulfillment of one of the applicable tests. Petitioners seeking a modification of a child support order must still meet one of the requisite statutory tests, but they may apply the parenting time credit in an attempt to do so. see Naville v. Naville, 818 NE2d 552, 555 (Ind. Ct. App. 2004).

The modification statute provides in part:
(b) Except as provided in section 2 of this chapter, modification may be made only:
(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.

The Guideline Amendments do not in and of themselves create a changed circumstance. However, they may create a change that meets the statutory requirement. You may find attorneys that will tell you that you may not seek a modification unless your circumstances have changed. Do not be discouraged at this point. I can help either you or your attorney understand how these changes affect a petition to modify and what case law will support your petition.

B. Equal parenting time

The first thing I hear from parents who are ordered to pay support when parenting time is shared equally or nearly is a scenario like this. "I don't know why I have to pay support. I have the children half the time, I have a house for them too. I buy clothing. I take them to just as many games. They still eat when they are at my house."

The Guidelines attempt to apportion support based upon income. That is if one parent earns 60% of the total income that parent should provide for the children 60% of the time. If it is only 50% then that parent must pay 5% to the other parent, the difference between the amount earned and the amount of time support is provided.

However, the calculation of support is not that simple. There are certain controlled expenses for which there must be an accounting. Costs such as school books and supplies, health insurance deductibles and other one time fees.

The Guidelines establish equal parenting time as anything where each parent has at least 181 overnights. The court must then determine who will be the parent who pays the controlled expenses. In making that determination the court should consider which parent has primarily been the one who has taken the children to medical appointments, attended or taken the child to school functions, who has traditionally paid those expenses and who has the ability to pay them in the future.

Once the determination of which parent who will pay the controlled expenses has been determined then it is a rather easy application of the guidelines to determine a support payment. It could now be determined that the custodial parent who pays those controlled expenses also pays support to the noncustodial parent.

The Guidelines previously did not provide that a low income noncustodial parent could receive payments to help with support of their children while the noncustodial parent provided care for the children.

C. Retroactive modification

The Guidelines now provide some relief from the child support obligation retroactively. The federal Bradly Amendment forbids judges from modifying support retroactively because of a change in circumstances. This is a difficulty encountered by parents who have been incarcerated or lost a job and never bothered to seek a modification. I cannot stress the importance enough of seeking a modification as soon as a major change happens.

The Indiana Court of Appeals has consistently ruled that support can be modified back to the date of the petition to modify. "It is within a trial court’s discretion to make a modification of child support relate back to the date the petition to modify is filed, or any date thereafter." Quinn v. Threlkel, 858 N.E.2d 665, 674 (Ind. Ct. App. 2006)

The Amendments do allow for two exceptions to the retroactive prohibition. One is when the parents have agreed to and carried out an alternative method of payment that has substantially complied with the spirit of the decree. The other is when the obliged parent takes the child into the obliged parent's home and assumes custody and provides the care for a period of time that it can be determined that a changed of custody has occurred.

You may find judges and attorneys telling you that support cannot be modified until there is a hearing and an order issued and the modification takes place from that day forward. I am currently assisting a parent who is going to seek a retroactive modification based upon one of the two described circumstances. He had already been told by an attorney "You can't do anything about what you were already ordered to pay" which simply shows the ignorance of some attorneys.

For those parties who have agreed to their child support arrangement their is still opportunity for a modification to be determined by the court. Do not feel that you are forever bound by a mutual agreement. The court In re Marriage of Kraft, 868 N.E.2d 1181, 1188 (In. Ct App. 2007) stated “In other words, the fact that a child support order has been entered pursuant to the terms of a settlement agreement, even where, as here, it is intended as forever determinative by the parties, is of no consequence to the question whether the order should subsequently be modified.”.

If you feel that your child support payments are too high then don't wait any longer to seek a modification. It may be best for you to wait until after the Guideline Amendments go into effect or to file the petition now. Please contact me if you would like an assessment of your case and for help in selecting an attorney.

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Indiana to research alternatives to incarceration for non-payment of child support

The second session of the Indiana General Assembly Advisory Committee of Child Support and Child Custody met in Room 233 at the State House on Friday 02 October 2009. There was not a quorum of the committee present because of prior obligations of some members but no vote on any issue had been planned.

The recently adopted amendments to the Indiana Child Support Guidelines and execution of paternity affidavits were on the agenda. Jeffrey Bercovitz, director of Juvenile and Family Law at the Indiana Judicial Center was the first to present on the Child Support Guideline amendments. Mr Bercovitz from some feedback about the process that went into the Domestic Relations Committee writing the amendments.

This included receiving public testimony in July of 2008, a period of written public input and numerous meetings of the Committee. The Committee also surveyed judges, attorneys and Title IV-D prosecutors. Dr Jane Venohr from the Center for Policy Research in Denver Colorado was hired as an expert advisor for the Committee.

I spoke on the issue of avoiding incarceration for non-payment of child support orders. Representative Summers had requested at the 25 September meeting that some alternatives to incarceration be addressed.

Failure to pay court ordered child support is rarely the result of refusal to comply with the court's order. Most often it is the result of a change in circumstances, being a loss of employment or an unrelated incarceration. At the time when these parents most need the assistance of an attorney to seek a modification of support they can least afford it. The result is building of the arrears. Instead of helping to eliminate the arrears we have additional punitive measures available for those not paying.

Two years ago one of our members was only paying about half of his court ordered child support payments but then quit paying any because he was fired the day the prosecutor suspended his license. This is a common occurrence that benefits none of the parties. With the help of the organization he was able to get a reinstatement, we found a job for him, his support was reduced to less than half and now 65% of his wages are being garnished.

Virginia has taken a similar approach to child support payment enforcement. In 2008, the Division of Child Support Enforcement established the Intensive Case Monitoring Program (ICMP), an innovative measure to maximize child support collections and decrease incarceration due to non-payment.

Case managers there have helped delinquent support obligers in securing employment, housing, education, and other warranted services. Through June 2009, that program has helped 199 participants and collected more than $175,000 in child support payments, about $900 per person, – an amount significantly higher than the child support paid by the same population six months prior to participation. Also much higher than amounts collected through incarceration. That program costs about 1/3 of every support payment dollar collected but we can easily envision this ratio dropping as the initial investment is spread out over future years of payments.

As unemployment remains high and our economy appears to be headed into decline again we need to think about possible ways to assist in providing support. Can we be creative enough to establish a program where an out of work parent does some type of community service in exchange for vouchers from a food pantry that can be given to the custodial parent?

Will Indiana examine Virginia's program and adopt something similar?

Will Indiana adopt statute that automatically grants conditional drivers license for employment and exchange of the children to those whose license is suspended for not paying support.?

Will Indiana adopt statute that requires the Indiana Department of Workforce Development to notify the court having jurisdiction over a child support order when a parent ordered to pay support begins receiving unemployment compensation?

These are a few of the ideas that I came up with in the past week that may be able to assist those non-custodial parents who don't have the means to pay support but are still facing incarceration. I hope to be able to assist the Committee with any of these endeavors they may wish to pursue.

The next speaker was Mr Beatty who is a non custodial parent and has provided testimony to both committees in the past. He also spoke on the issue of incarceration. He suggested that the State devise a program that provides tax credits to employers of non-custodial parents who are out of work and have a child support arrears.

Mr Beatty explained that a program already exists through Workforce One that provides credits to employers for hiring custodial parents who receive Temporary Aid to Needy Families [TANF]. He also spoke about a program that is similar to this in Delaware County.

The Committee then moved onto the subject of paternity affidavits. Chris Worden, an Indianapolis family law attorney, provided to the Committee copies of his article Rethinking the Paternity Affidavit as it appeared in the May 2009 issue of Res Gestae. Mr Worden reserved his comments to the Committee for the 16 October 2009 meeting so the members would have time to read his article first.

The next meeting of the Child Support and Child Custody Committee will be Friday 16 October 2009 at 9:30 am in room 233 of the Indiana State House.

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