Stuart Showalter is a child custody policy advisor to Indiana state policy makers as well as attorneys on child custody cases. For parents he offers child custody based life coaching to help them maintain control of their lives, increase their fitness as parents and manage their litigation so they can truly serve the best interest of their children. He provides this Law Blog as free opinion on various issues. Reader submissions of topics are welcomed. Send to Stuart@StuartShowalter.com
Kathy Hardesty appealed the trial courts' entry of an Order for Protection (“protective order”) against her pursuant to a petition filed by Larry Vickery, pro se. The Indiana Court of Appeals in this decision filed on 29 June 2010 affirmed the trial court.
Hardesty contends that the trial court erred when it issued the protective order because the evidence is insufficient to show that she stalked Vickery or his roommate Ledbetter. From my experience in helping men who have been victims of false allegation, including myself who was falsely accused of rape, is that most judges feel that an accusation is sufficient evidence. The Court of Appeals in the past has upheld based upon that.
In my case, upon a hearing, the alleged victim once placed under oath said that I had not done anything to her that she had no fear of me and that she did not care if the ex-parte order remained in place. The PO was immediately dismissed.
In the case of Hardesty there was a hearing conducted in which the judge found sufficient evidence to issue the PO. So Hardesty had a big uphill climb from there.
Hardesty and Vickery are neighbors whose properties abut each other and are separated by a six foot privacy fence. Vickery alleged that Hardesty had been stalking and threatening him and had done damage to his vehicle.
In the summer of 2009, Vickery's truck sustained damage while parked on his property. One week afterward, while Vickery and Ledbetter were standing outside discussing the truck damage with a neighbor, Hardesty “just [came] running out there yelling” and said to Vickery, “You fat son of a bitch next time it's going to cost you more[.]” Vickery and Ledbetter interpreted Hardesty's statement to mean that she had caused the damage to Vickery's truck. The damage to the truck shown in photographs “match[ed] up perfectly” with the ram guard of Hardesty's vehicle.
Later that year Vickery was standing in his yard when he heard Hardesty say loudly from the other side of the fence that she wanted to “blow [his] legs off” and she “wished she had some type of bomb or landmines to blow [him] up[.]”
There is no requirement that the alleged stalking be committed by a family or household member. Therefore, a person who alleges that she is a victim of stalking, even where the alleged stalker is a stranger to the victim, may seek a protection order against the alleged stalker.
Stalking is defined as a knowing or intentional course of conduct involving repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that actually causes the victim to feel terrorized, frightened, intimidated, or threatened.
The standard of proof in this type of case, civil, is by a preponderance of the evidence. The evidence does not have to conclusively prove the alleged conduct but must only demonstrate that it was more likely than not.
Hardesty contends that the evidence is insufficient to show that her conduct actually caused Vickery or Ledbetter to feel terrorized, frightened, intimidated, or threatened. The court did not agree. A reasonable inference from the evidence is that Vickery actually believed Hardesty was threatening him.
While this standard is tenuous and subjective, allowing it too often be abused, in this case it appears that the incidents cited herein and others support that Vickery did feel that Hardesty was repeatedly threatening him.
While this case demonstrates that the gender barrier when there is conclusive evidence is being broken there is still an overwhelming amount of PO's being issued when there is no viable evidence. This is a law that has done far more harm than good and should be changed.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
I have seemed to run across a few instances lately where custody of children was reversed or lost in the initial phase because of clearly poor judgment by one of the parties. So, here is part III.
This is the best example I have found that exemplifies "having it all and throwing it all away." This is what the court said:
"After both Mother and [youngest child] tested positive for methamphetamine, a child in need of services (“CHINS”) action was filed regarding [both children]. In December 2005, Mother was charged with dealing in methamphetamine as a Class A felony, but the charges were later dismissed. On January 20, 2006, the CHINS court ordered that Father’s aunt, [XXXX], and her husband have custody of [both children] due to Mother’s drug usage and Father’s anger issues and inappropriate behavior. Father was allowed only supervised visitation."
The aunt and her husband later sought custody of the youngest child. Over the objection of the couple, the dissolution court granted custody of both children to Father.
At some point, the CHINS proceeding was dismissed. Following that, Mother filed a petition seeking parenting time with the youngest child. A short time later the dissolution court granted supervised parenting time to Mother. Just over a year following that Mother filed a petition to modify custody of the youngest child. The court appointed a CASA for the benefit of the child.
The CASA initially believed that placement of the child with Father was in the child’s best interest. As the CASA’s interaction with Father increased, she changed her mind. The child informed the CASA that Father punished him for stating that he wanted to spend time with Mother.
After filing her report, the CASA called Father, and Father hung up on her. When the CASA called back, Father said that she was not allowed to call him, that her report to the dissolution court was a lie, that she was “barren because it was God’s will,” and that she was a “spun Catholic.” Father yelled at the CASA, and the CASA testified that she felt intimidated by a parent for the first time in seven years in acting as a CASA. In his testimony, Father admitted making these statements to the CASA.
After receiving the CASA’s report, the dissolution court entered an interim order allowing Father and Mother to have equal parenting time. Judge Robert J. Pigman was obviously in a tough position here. We have what appears to be two, not good parents. I believe the proper decision here is Shared Parenting because I don't believe either of these parents possesses the skills to adequately provide the sole care, companionship and support to the child.
This is an arrangement that many fathers would feel blessed to be in. Not this father. He testified that the CASA’s report was not truthful, “so [he] figured [he would] enlighten her a little bit with the truth.”
In particular, the dissolution court found a substantial change in the “mental and physical health of the individuals involved.” which is one of the eight statutory factors that must be considered by the court.
The dissolution court found: "Father’s anger towards the Mother which was evident in both his dealings with the CASA and during his testimony and time in Court is a major factor in the Court’s decision. The Father['s] demeanor while testifying, including pointing repeatedly at the Mother during his testimony, the tone of his voice, and body language made it abundantly clear that he possesses a high level of personal animosity and resentment towards the Mother. This fact was also verified by a number of witnesses who testified to the Father’s anger against the Mother." [emphasis added]
The dissolution court noted that “Father has yelled obscenities at the Mother in front of the minor child. . . . This conduct by the Father is completely inappropriate and not in the child’s best interest.” The dissolution court found that Father routinely referred to Mother as “whore” and “f***ing whore” even when the child was present.
The Court of Appeals in affirming the dissolution court’s decision said it was based mainly on Father’s demeanor toward Mother and inappropriate conduct in front of the child.
In another case Mother intended to relocate and Father objected. The court allowed the relocation based on the hostility between the parents. The court stated in its findings: "In fact, [Father] testified he did not like [Mother] and would rather not have anything to do with her."
"The parties acknowledge an animosity between them that negatively affects their son. Relocation will allow the parties to minimize their contact with one another, while maintaining a high level of contact with the child on an individual basis."
It should have been no surprise to this man that when he says he doesn't want to have contact with the mother that the court will accommodate his wishes by allowing her to move across the country so as to greatly reduce parenting time exchanges and contact with the mother.
I have provided counsel to many people working in courts in at least 10 different counties in Indiana. I have seen the many differences and similarities in judges.
I have also seen the many differences and similarities in parents. What it comes down to is that nearly all are predictable. Yet somehow it appears that some of these litigants think they are going to be the exception.
Law can be learned from books. The procedures are set forth in the court rules. Pro se, also known as self-represented, litigants are entitled to represent themselves with the same force of law as those who have attorneys doing it on their behalf.
What I find missing in most pro se litigants and some represented parties is the knowledge of the necessary but unwritten court rules. One of these is courtroom demeanor.
Trial preparation as it relates to conduct is as equally important as the rules and facts.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
I have seemed to run across a few instances lately where custody of children was reversed or lost in the initial phase because of clearly poor judgment by one of the parties. So, here is part II.
This case was heard by the Honorable Jeffrey F. Meade in the Gibson Circuit Court. I apply the term Honorable to Meade in reverence to the careful considerations he made in this case. It could have been easy to follow the common procedures but instead Meade did what he is mandated to do; make a judgment. He did so with honour.
Experienced attorneys and lobbyist have crafted laws designed to favour the destruction of the life of a child for the purpose of profit and winning a child custody award. There is a typical pattern among child abusers; abscond with the child, falsely claim domestic violence, deny the child access to the other parent, then seek sole custody based upon the other parent's lack of involvement with the child while the child was deprived of that necessary parenting.
Fortunately for many children this strategy is being aggressively challenged by judges and legislators. This is one such instance.
In this case the court entered an Order Entry on child issues, awarding primary physical custody of the children to Father, setting out a parenting time schedule for Mother, and setting the child support amount to be paid by Mother. The Order Entry includes the following sua sponte findings by the court:
FACTUAL CONSIDERATIONS: It is noted that neither party requested the Court find the facts specifically and state its conclusions thereon. However, the Court feels compelled to highlight a few of the many factors considered:
First, the Mother’s removal and taking of the Children to a shelter comes to mind. This was done after one of the Children had made allegations of sexual abuse by one or more of her cousins on the Mother’s side. The Mother, without notice to the Father, and no notice of where she and the Children were, took the Children while he was at work, and moved to a shelter near her home town at or near Danville, Indiana. For approximately twenty (20) days the Father did not get to see the Children, and more importantly, the Children did not get to see their Father. The Mother admitted the Father did not physically abuse her or their Children.
Coupled with this was what Father’s counsel described as a “bogus” Ex Parte Protection Order the Mother procured against the Father. The Court notes that while the Order itself was legitimate since signed by a judge, that much of the information used in obtaining the Order was in fact, bogus. Specifically, the Mother in her petition for the protection order alleged the Father had left “threatening cell phone calls[.”] The Court would submit that any parent, upon returning home from work to find that their [sic] spouse had packed up and left with their three little girls, might perchance have several questions for that spouse. Perhaps, “where are you?”; “what in the world is going on:”; “where are the girls?”; “are they okay?”, just to name a few. What the Mother put the Children through by taking them away from their Father in this manner and getting an order preventing him from contacting them is inexplicable and disturbing.[emphasis added]
Judge Meade also made a finding about the way Mother handled the allegations by the parties daughter that she was sexually abused by a cousin while under the care of Mother. The Court of Appeals found that the evidence presented did not support the finding by Judge Meade and thus remanded with instructions for a finding consistent with the evidence and a custody order consistent with the new findings.
The Order Entry includes the following sua sponte findings by the court as it relates to the alleged sexual abuse:
The Mother’s obvious disbelief of her daughter’s allegations is another point that comes to mind. It is clear to this Court that the Mother did not want to believe what her daughter had alleged as it concerns inappropriate sexual activity of children in her Mother’s family—activity that has not been sufficiently recognized or addressed, and a family that the Mother was wanting to, and did, move closer to.
With regard to the daughter’s allegations is the fact that the Mother obviously never really investigated the statements to see if they could be true. The Mother, a nurse no less, simply stated that a physician had inspected the child and had observed no signs of sexual abuse and that was good enough for her. However, questioning by the Court of a witness revealed that the child had not alleged vaginal penetration (that might have left evidence), but anal penetration (that would not have left evidence), something the Court believes a nurse would have known, should have known, or could have known with a little effort. Also curious was the Mother’s response to this testimony—absolutely no observable reaction. The Father’s response—he immediately broke down crying and struggled to regain composure as the hearing continued.
The Court continued its findings with this mention of extra-curricular activities:
The Court could go on and on addressing a considerable number of factors that favor the Father in this case, but will suffice to list one more, that is, the number and types of extracurricular activities the Mother has the Children involved in. No consideration whatsoever was given for Father’s parenting time. One example would be the Mother signing all three little girls up for cheerleading through a youth football league, which by the way, was not through the schools. What the Mother obviously does not, or chooses not, to understand is that she was setting the Father up to fail. In short, young Children should never be forced to choose between an activity and time with a parent. [emphasis added] Parent[s] should beware [sic] of sacrificing their children’s interests on the alter [sic] of their vindictiveness.
In a fractured family it is important to try to maintain routine and activities for the children but care should be used to observe the need for the children to have meaningful time with each parent. When the children are participating in activities in which parents are welcome both parents should attempt to attend and do so in a manner that is not disruptive.
The Indiana parenting Time Guidelines include these sections on children's activities:
"2. School Activities. Each parent shall promptly notify the other parent of all school activities. A parent shall not interfere with the right of the other parent to communicate directly with school personnel concerning a child’s school activities. The parent exercising parenting time shall be responsible to transport the child to school related activities. Commentary The opportunity for a child to attend a school function should not be denied solely because a parent is not able to attend the function. In such instance, the child should be permitted to attend the function with the available parent. Scheduled parenting time should not be used as an excuse to deny the child’s participation in school related activities, including practices and rehearsals. 3. Other Activities. Each parent shall promptly notify the other parent of all organized events in a child’s life which permit parental and family participation. A parent shall not interfere with the opportunity of the other parent to volunteer for or participate in a child’s activities. Commentary A child is more likely to enjoy these experiences when supported by both parents. Each parent should have the opportunity to participate in other activities involving the child even if that activity does not occur during his or her parenting time. This includes activities like church functions, athletic events, scouting, school photographs, etc."
The Court concluded its findings with this:
In sum, the Mother, with no notice or explanation, stole the Children away, then used a “bogus” protection order to keep the Father away. Next, she sought to press the advantage of having the Children with her by getting them entrenched in her hometown area and immersed in activities that filled their time and encroached on their time with their Father. The Father testified that if he were the primary residential parent he would not enroll the children in any extracurricular activities that in any way compromised the Children’s time with their Mother. This Court believes him.
The cry of domestic violence has been called a woman's "silver bullet" because it has often led to complete control over the lives of the children and the removal of their father from their lives, sometimes for life. Often times this has been done without any evidence of violence. It has become a practical reality that a man must disprove the allegation in order to protect the needs of his children to maintain contact with him. Thus, the effectiveness of this ploy.
The Court of Appeals noted that in her brief Mother contends the Court did not appropriately weigh the factor of domestic violence. Mother felt that she was entitled a finding by the Court attributing an act of domestic violence to Father because she had made the unsupported allegation.
The Court of Appeals noted "By referencing Mother’s admission that Father had not physically abused the family, the court in essence found her reason for going to the shelter, fear of Father, not credible. Still, Mother contends that there is no evidence that the dissolution court “appropriately weighed” the factor of domestic violence in determining custody."
Fortunately Judge Meade saw this ploy for what it was, a trial strategy designed to alienate the children from their father.
On the opposite end is Judge Rebecca McClure in Boone County. There a mother absconded with the children to Pennsylvania while the father was at work. She did not inform the father of her whereabouts or allow the children to have any contact with him for thirty-nine days.
What did the GAL Kandi Killin recommend for this admitted longtime cocaine user; that she have custody of the children because to "relocate" them back to Indiana [their lifelong home] would not be in their best interest. Judge McClure did make specific findings in her order giving mother full legal and physical custody of the children, including that they had established residency in Pennsylvania.
What was the first thing that this woman alleged was her reason for absconding with the children; domestic violence. This accusation was completely rebuked upon an examination of the woman while under oath.
It is important to note that domestic violence is a reality. I was subjected to acts of violence by my ex-wife, Elica Talbot, for years. This included being threatened with a gun if I were to seek sole-custody of our son. While still in the marital residence she also pointed a gun at our toddler son and threatened to kill him if I didn't do more for her.
However, false allegations of domestic violence hurt the real victims because doubt lingers over every accusation that it may just be part of the proliferation of false allegations that have erupted in child custody proceedings.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
One of the most devastating events in the life of a child is sexual abuse. The physical act itself, while sometimes horrific, does not have the lasting consequences as that of the psychological effects.
Most often the abuser is someone in a position of trust in the life of the child. It is this violation of the trust that destroys the underpinnings of the relationship between the child and the adult world replete with suitable caregivers. It is that which was to be but now isn't that is the betrayal to the child that is most injurious.
A child suffering this abuse seeks a hegira to escape the abuse but the physical bounds may leave only a psychological journey from which mental disorders may flourish. It is those physical bounds and the dirty secret which create them that I wish to expose and open to remediation today.
I often write about child sexual abuse and am very passionate about this issue. I am not a direct victim of sexual abuse, but rather, I am one of the collateral victims. I had friends in school that had been victims of sexual abuse and my wife had also been.
My wife never knew how to properly relate to men. To her a relationship with a man was always sexual. Although I tried to accommodate this it eventually got to where she had no interest in providing at least minimal care to our child. Her life became consumed by pursuing sexual relationships with other men. Ultimately the finality was her abandonment of our family in favour or going to live with one of her sexual partners.
I continue to see the effects of sexual abuse happening among my friends today. What I have seen in 25 years is that there is a common link among them all.
If you are so fortunate that you have not been a direct victim or seen the effects of this often hidden tragedy then you are blessed.
There is no single family dynamic that sexual abuse is limited to but some do increase the risk of an occurrence. Family dynamics are not collected as part of child sexual abuse reporting although those of us who are advocates know that it is a significant factor. There are many studies that reinforce this concern. Particularly there is this finding: Children living in stepfamilies or with single parents are at higher risk of physical or sexual assault than children living with two biological or adoptive parents. [fn1]
The latest federal survey on child maltreatment tallies nearly 900,000 abuse incidents reported to state agencies in 2005, but doesn't delve into how abuse rates correlate with parents' marital status or the makeup of a child's household. The sensitivity of probing into private lives is among many problems underlying the lack of definitive data correlating abuse with parents' marital status and household makeup. Although agencies do not collect familial status data, independent studies reveal some of the needed information.
The reality that policymakers, judges and profiteers in the child custody market don't want exposed is that some single mothers provide opportunities for sexual abuse of their children. Research demonstrates a direct correlation between the potential for sexual abuse of children and the familial relationships in which they reside. Particularly, children living in a sole custody with their mother arrangement are at a statistically significantly increased risk of sexual abuse or assault than those in Shared Parenting arrangements.
One of the reasons for the increased risk of sexual abuse of children in households headed by mothers is the lack of a biological component. "I've seen many cases of physical and sexual abuse that come up with boyfriends, stepparents," said Eliana Gil, clinical director for the national abuse-prevention group Childhelp. "It comes down to the fact they don't have a relationship established with these kids," she said.
A man whose motivation to reside with the mother is primarily sexual in nature may not feel the repulsion to engage in sexual activities with the children that naturally occurs with a biological parent. I previously wrote about how young girls prepare themselves for sexual relations at an earlier age when exposed to unrelated men in the household.
In Inducing premature puberty in girls I stated "The critical time for exposure to the "strange male" seems to be the first five to seven years of life, when the pathways to puberty are set down. Dr Ellis speculates that an environmentally triggered process shunts the girl towards a particular reproductive strategy. This process may be influenced by male pheromones secreted by the body. The pheromones of unrelated males apparently accelerate puberty development while the scent of the biological father may delay maturation."
It is this natural biological process that may "invite" the mother's partner into sexual relations with her daughters which are unrelated to him. Many scholars and front-line caseworkers see the abusive-boyfriend syndrome as part of a broader trend that deeply worries them. They note an ever-increasing share of America's children grow up in homes without both biological parents, and say the risk of child abuse is markedly higher in the nontraditional family structures.
“This is the dark underbelly of cohabitation,” said Brad Wilcox, a University of Virginia sociologist. “Cohabitation has become quite common, and most people think, 'What's the harm?' The harm is we're increasing a pattern of relationships that's not good for children.'' Unfortunately even when abuse is occurring and known to the mother, in some instances, she will not intervene out of fear of losing the companionship of her partner or financial support that he is providing.
"Children being raised by one parent are at a greater risk for many things as they grow up," said William C. Holmes, MD, MSCE, Assistant Professor of Medicine and Epidemiology at the University of Pennsylvania, and at the Center for Health Equity Research and Promotion at the Philadelphia VA Medical Center, reports his findings the Journal of Epidemiology and Community Health. "We now must add childhood sexual abuse to part of this risk picture."
Numerous studies confirm the risk of sexual abuse of children living with a mother and an unrelated father figure. In a study of 700 adolescents, researchers found that "compared to families with two natural parents living in the home, adolescents from single-parent families have been found to engage in greater and earlier sexual activity." [fn2] Although not always with the mother's partner sometime it is and in many of the cases the sexual activity is in an unhealthy relationship.
A study of 156 victims of child sexual abuse found that the majority of the children came from disrupted or single-parent homes; only 31 percent of the children lived with both biological parents. Although stepfamilies make up only about 10 percent of all families, 27 percent of the abused children lived with either a stepfather or the mother's boyfriend. [fn3] Again, the abuse is not directly linked to the mother's partner but the correlation between the sexual abuse and that living arrangement exists.
A clear indicator or sexual abuse or unhealthy sexual relationships is the perpetration of rape. Sixty percent of America's rapists grew up without fathers. [fn4] It is often the sexual abuse suffered as a child that results in the learned behaviour of forced sexual relations.
"There is definitely something about being raised by one-parent that independently contributes to the higher risk for sexual abuse. While children from lower income one-parent households are at a higher risk, better socioeconomics of the household don't make the risk go away completely." said William C. Holmes.
Earlier I mentioned that I had seen a common link over 25 years of my friends who had been sexually abused. I know many young girls who have sought my assistance, counsel or have simply needed a confidante to listen to them. Those that I know have been sexually abused along with those who engage in sexual relationships at a young age have little or no contact with their biological father. Of those whom I have known were sexually abused by an adult male it was most often someone the mother had invited into the house and in some cases the mother knew but did nothing to stop it.
Being a single parent is a difficult task for any man or woman. In addition to the myriad of responsibilities that one parent must single handedly tackle one more must be talked about openly and placed at the top; that is being vigilant to guard against potential sexual abuse, especially by a live-in partner.
Many considerations are involved in the balancing factors when contemplating divorce. Increasing the risk that your child will be sexually abused must be added to this. Mothers must carefully examine whether to allow another father figure to come into her household. Fathers must stay involved with their children.
Both parents need to communicate openly with their children about their reproductive system and the rights and responsibilities that go along with that. Children need to feel comfortable that they can confide with at least one parent about any sexual related issue. This must start at a very young age especially among high risk groups.
Although the legal system should disbelieve a child and approach an accusation of sexual abuse with doubt, parents should always initially accept the child's statements as true. This does not mean that it should become part of the artillery in the custody battle war-chest. Rather, both parents should discuss this type of concern with each other. Naturally, if the other parent is the subject of the alleged abuse then discretion should be used in how the subject is broached.
The impact of sexual abuse on a child is so severe and long lasting that no parent should in good conscious be able to put their desires ahead of the need to protect the children. Quite clearly children do need both parents.
Footnotes [1] According to several studies co-authored by David Finkelhor, director of the University of New Hampshire's Crimes Against Children Research Center. [2] Carol W. Metzler, et al. "The Social Context for Risky Sexual Behavior Among Adolescents," Journal of Behavioral Medicine 17 (1994). [3] Beverly Gomes-Schwartz, Jonathan Horowitz, and Albert P. Cardarelli, "Child Sexual Abuse Victims and Their Treatment," U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention. [4] D. Cornell (et al.), Behavioral Sciences and the Law, 5. 1987. And N. Davidson, "Life Without Father," Policy Review. 1990.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
I have long fought for and end to government discrimination including gender discrimination. Still, this year we have those involved in the family court system expressing a gender bias or blatant discrimination. I therefore applaud the Morgan Circuit Court for a custody decision that was truly based upon the best interest of the child and not in maintaining a gender bias.
This case involves a paternity action wherein the father and mother were cohabiting after the mother divorced and they subsequently had a child together. Custody was transfered to the Father upon his subsequent Petition. Mother appealed.
The 2006 Decree of Paternity ordered that Mother have primary physical custody, that the parties share joint legal custody, and that Father pay Mother $100 per week in child support. Father's parenting time consisted of weekly Wednesday overnights, every other weekend from 6:00 p.m. Friday until 6:00 p.m. Sunday, Tuesday overnights following Mother's weekends, and one week of extended visitation “every six months pending further agreement . . . of the court.”
Initially Mother and Father had a good relationship in regards to parenting time with their child. Father was able to have their daughter, Destiny, for up to four days at a time consistent with his work schedule. When mother became aware that Father was dating Karyn parenting time for Father was restricted to that provided by the decree.
Based upon this, denial or court ordered parenting time on four or five occasions and some other actions, Father filed a Verified Petition for Contempt Citation and for Modification of Prior Order for Custody and Support .
Subsequently, Mother informed Father that she and Destiny were going to move in with her ex-husband but that “they would not be there long, that they had to live there for three weeks because the apartment complex she was trying to move into . . . was not ready yet . . . .” However, around the time Father filed the custody modification petition , Mother told Father that she was going to make that house her permanent residence because Father was “going to fight for custody of Destiny.”
At the hearing, Father testified that Mother had denied him parenting time “usually whenever [Mother is] upset with [Father].” Father testified that at times Mother had allowed greater access to Destiny than what was allowed in the paternity order, but that it's always been directly related to how their relationship is. Father testified that he and Mother had an arrangement that Father could pick Destiny up at 5:30 p.m. instead of 6:00 p.m. per the paternity decree because that was a more convenient time for Father, but if they were arguing for any reason he had to hang out until six o'clock to pick-up Destiny.
Father also made tape recordings of conversations with the Mother in which she made angry outburst at him while in the presence of Destiny.
After the hearing the court made Findings and Conclusions pursuant to TR52. The Court found; "As described and shown by the evidence, the mother appears very quick to anger, and has fallen into a pattern [sic] being quick to use the child (and access to the child) as a reward and punishment system directed toward the father. This is without question a damaging and unhealthy tactic, and past episodes have directly involved and distressed the child."
The court found and ruled as follows: "A. The court finds that there has been a substantial change in the factors for consideration per Ind. Code § 31-17-2-8, after consideration of all those factors per Ind. Code § 31-17-2-21(b). Specifically the court finds changes in considerations 5 and 6 as per above. B. The court finds that a change of custody would be in the child's best interests. . . . "
Indiana Code § 31-17-2-8 factors include; "(5) The child's adjustment to home, school, and community. (6) The mental and physical health of all individuals involved."
In this case Mother didn't like it that Father had a new romantic interest. She was hostile towards that woman and Father because of this. Her hostilities were expressed in front of their child. She also used the child as a pawn in rewarding or punishing Father by allowing or denying parenting time. This clearly is not in the best interest of the child.
I have often encountered men who didn't want to seek to modify support payments or enforce some provisions of the Indiana Parenting Time Guidelines from fear of upsetting the mother and having parenting time reduced to the Guideline amount or restricted altogether.
At least in one court, as this case shows, that fear is unfounded and can actually lead to a modification of custody. I also recently received an Order in a case I was advising on that Father's parenting time was modified upward based upon similar circumstances.
Indiana has long been known as a "mothers only state" but just as the tide is shifting throughout the country so is it in Indiana.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
As a child custody policy advisor I have written and had child custody related legislation passed into law. My counseling of lawyers and appearances as an expert witness have helped them achieve more favorable results for their clients including winning appeals, gaining parenting time, reducing conflict, and mediating agreements. Additionally I made important contributions to the amended Indiana Parenting Time Guidelines that went into effect March 2013 and am currently formulating recommendations for the Indiana Child Support Guidelines which are to be amended this year. For parents I offer child custody based life coaching to help them maintain control of their lives and increase their fitness as parents so they can truly serve the best interest of their children.
