Monday, November 29, 2010

Father Loses Custody of Children over Religious Belief

An Anderson, Indiana man, Craig Scarberry, was shocked to get the Order from the court following a child custody hearing in which the court found that he had changed his religion from Christianity to agnostic and was thus unfit to have custody of his children. Apparently Judge Thomas Newman felt that the religious preference of a parent stood paramount to the safety of the young children.

The children who are age 4, 6 and 7 years, have all continued their schooling in a Christian based institution and continue to attend church while in the care of Craig Scarberry. However, the children's mother, Christine Porcaro refused to talk to Craig after he expressed doubt as to the veracity of the Christian faith.

The other significant findings made by the court were that the children's mother, Porcaro, left the children at home alone and does not consistently choose to use safety restraints for the children while they are traveling in a car. Of great concern to Craig is that his youngest child has special needs which affect the child's mobility and could result in an injurious fall.

More troubling still is that following the order mother allowed her live-in boyfriend to send messages to Craig gloating about the order and taunting him. The boyfriend, Brandon Galbraith, later violently attacked Craig during a parenting time exchange which resulted in emergency medical care for Craig at a local hospital.

Craig completed a Petition for an Order of Protection but such petition was somehow "lost" by the court or prosecutor. After media inquiries and upon resubmitting the Petition for an Order of Protection one was issued on behalf of Craig. Brandon Galbraith has since been charged by the Madison County Prosecutor for the crime but no Order of Protection has been issued to protect the children from the violent attacker who caused them to scream and cry in terror while their father was beaten.

Consistent with the obligation mandated to me by law I made a report to the Department of Family and Social Services that I believed that the children were Children in Need of Services [CHiNS] based upon the admitted neglect by the mother and that she has a boyfriend living in the household who has exposed the children to the violent attack on their father.

This was not the only time that an Indiana judge has taken custody of children away from a parent for failing to practice a religion approved by the government. In 2005 Marion County Superior Court Judge Cale Bradford found that parents who practiced the religion Wicca, a nature based religion whose adherents are primarily agnostic, were unfit to raise children and ordered the parents to not expose the children to any non-mainstream religions or practices.

So what has happened to religious freedom? The United States Constitution and the Constitution of the State of Indiana both offer protection for freedom of religion and prohibit the establishment of religion by the government. In the case of Cale Bradford he was overturned by the Indiana Court of Appeals.

The freedoms provided for in the First Amendment to the United States Constitution do not exist to allow the citizenry to speak in support of or join with the majority but it is, rather, a founding principle of our constitutional democratic republic that the citizenry, individually, is protected in its right to dissent from the majority. That is to speak out against public policy and have the right not to practice religion or to choose to express beliefs that differ from the majority or government officials.

My initial thought was that Judge Newman is an intolerant religious bigot. I solicited comment from Judge Newman and did receive a return call from Judge Pancol, the son of the Magistrate Pancol who wrote the order approved by Newman. Judge Pancol, who stated he was not familiar with the specifics of the case, assured me that his father would not make a child custody determination based upon a parent's religion. Although I do disagree with his judgment I do respect that he did call and offer and explanation.

We did discuss the statutory language that relates to parents ability to cooperate and agree on legal custody decisions such as education, health care and religious training. However, in this case it does not appear that the parties disagree on the religious training of the children but that the mother is incensed at the father because he is now agnostic.

If the record reveals that Scarberry had, in fact, attempted to change the religious training of the children then the court would be authorized to make a custody determination using that information. But as Scarberry insists that he has continued to maintain the childrens religious training then the court would have overstepped its boundaries.

Newman's order will be appealed to the Indiana Court of Appeals. Any organization or attorney interested in filing an amicus brief in the case should contact me. Mr Scarberry is still receiving counsel on a possible federal lawsuit against the State of Indiana for a violation of his civil rights.

A rally in support of religious tolerance will be held at the Madison County Courthouse on Thursday 16 December 2010 from 10:00 am to 6:00 pm. I encourage all parents of minor children who do not want a government official mandating their religious preference to attend. I also call upon people of all religious persuasions and especially Christians who do not believe that a religious bigot like Newman represents them to also come show their support for religious freedom.

The Indiana Custodial Rights Advocates is establishing a fund for Mr Scarberry to help pay for the costs of pursuing an appeal. Any donations received in excess of his actual costs will be used to help preserve the rights of parents to have custody of their children. Donors may make a contribution through the paypal link on the InCRA homepage or by sending a check or money order to InCRA at P.O.B. 374, Lebanon, IN 46052. Please indicate 'Craig Scarberry Fund' on any contribution made through InCRA. Next week donations should be able to be made directly to the fund bank account at any branch location where the account will be maintained.

I leave you with Craig Scarberry in his own words, "I am still in shock over this life shattering order for both my children and I. I was under the impression that the courts were to promote the best interests and needs of the children. I never stood in the way of my children's right to religious freedom and to explore their own truths. But now, a judge has stood in the way of their right to be raised and cared for by two loving parents. I am at a loss and wonder how it is that the constitutional rights, that so many have protected and died for, can be violated and impair families rights to religious freedom."

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Saturday, November 27, 2010

Domestic Relations Committee Seeks to Give Children More Access to NCP

The Domestic Relations Committee of the Indiana Judicial Center met on Friday 18 November 2010 for the purpose of continuing work on amending the Indiana Parenting Time Guidelines and other business as it may come before the committee. The Committee was to focus on parenting time to occur as planned and draft language related to Scope of Application and, General Rules Applicable to Parenting Time and Specific Parenting Time Provisions. Discussion should have included enforcement of parenting time.

Magistrate Raduenz states that the minimums established in the guidelines are being used as the 'presumption' which was agreed to by most on the committee. Discussion was held on ways to attempt to steer parties, practitioners and judges away from using the Guideline minimums as the norm.

While not declaring that a presumption on 50/50 time would be the starting point, which it was stated would be left to the legislature, language was drafted to specifically state that a parenting time plan should be established that is in the best interest of the child. If the parties cannot agree then the Guidelines would represent the minimum.

The current presumption reads, "There is a presumption that the Indiana Parenting Time Guidelines are applicable in all cases covered by these guidelines. Any deviation from these Guidelines by either the parties or the court must be accompanied by a written explanation indicating why the deviation is necessary or appropriate in the case."

The following was added to the commentary to encourage upward deviations;
A court is not required to give a written explanation as to why a mother or father is awarded more time with the child than the minimum set forth in these guidelines.

Because the IPTG are minimum standards, it is recommended that parents and courts not "default" to these guidelines in lieu of consideration of the best parenting time plan.

This still allows for a unilateral decision on parenting time by the custodial parent who can simply choose not to participate in negotiations and thereby impose the minimum time with the non-custodial parent on the children.

There was vigorous discussion on whether the amendments to the Guidelines should be retrospective or prospective. That is, should the changes apply to all existing orders which make reference to "per the Indiana Parenting Time Guidelines" or some similar language. The Committee had decided that it may be impermissibly stepping into the realm of modifying a child custody order if it made the changes retrospective.

I then presented the likely possibility that there would be children who the old Guidelines would apply to that would be living with a remarried parent who had subsequent children and divorced following the adoption of the revised guidelines who would be subject to differing time schedules. This could become a logistical impossibility as some of the proposed scheduling changes would be splitting siblings in a way that may require a parent to be in two places at one time.

It was decided by the committee that further research would have to be done on whether the changes can be made retroactive or if some mechanism could be put in place to allow for an expedited modification of existing orders to bring congruence with the revised Guidelines.

To insure punctuality of parents during exchange times language was drafted that would establish a threshold time limit that a parent must wait before abandoning the exchange attempt and also that both parties would be required to communicate should either party be late for the scheduled exchange.

A parent returning the child would be able to return home with the child to await the arrival of the receiving parent. For those who are required to meet at a mutual location the receiving parent would have to notify the returning parent of his or her arrival at that location. If the late parent did not attempt to communicate with the other parent the punctual parent could set the terms of the exchange without further agreement.

Finally, the Committee included language for Virtual Visitation. I had made a presentation on this issue earlier in the year. The language was not fully developed for this section of the Guidelines. Along with whether to make the Guidelines apply retrospectively, this issue will be revisited.

The next meeting of the Committee is scheduled for Friday 21, January 2011.

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Saturday, November 20, 2010

Indiana Rules Drafted for Parenting Time Coordination

The Domestic Relations Committee of the Indiana Judicial Center met on Friday 22 October 2010 in regular session. The morning portion of the meeting was a joint session between the Domestic Relations Committee and the Alternative Dispute Resolution Committee for the purpose of discussing a draft proposal for Parenting Time Coordination.

Subcommittees of those two committees had worked together on the proposed rules for parenting time coordination which was presented as a draft as the Indiana Rules for Parenting Coordination.

It was the intention of the committees when drafting these rules that Parenting Time Coordination [PTC] should be used as a last resort and that mediation or other alternatives first be sought. They do not believe it is intended for all cases but only high-conflict parties.

PTC has been ordered when agreed to by the parties who pay the costs. However, a recent opinion has just come down about PTC which I will write about separately. It is usually a result of the judge encouraging the parties to seek resolution of their disputed issues before returning to contest them in court.

Parties engaged in PTC pay a retainer and sign a contract that stipulates the costs to the parties. Hourly rates vary between $50-$200 in current cases. Mark Lloyd, Alternative Dispute Resolution Committee Chair, stated that it costs much less for the parties to sit down with a Parenting Coordinator [PC] than to continue paying two attorneys to litigate the issues. Johnson County has a provision for indigent parties to have Alternative Dispute Resolution (ADR) opportunities.

Judge Thomas Milligan, Montgomery County Superior Court, stated that the most contentious and litigious cases involve pro se parties. This is the same thing that I have found to be true as most of my clients for litigation coaching [LINK] have either spent themselves into poverty fighting or have been rejected by or fired attorneys who will not carry forth with frivolous battles.

Currently 15 states have rules or statutes on PTC. Some states permit PTC to be ordered without agreement of the parties. However, a judge can't require the parties to pay for it if a judge orders it. Hendricks Superior Court Judge Karen Love said she has forced it on parties who didn't want it but after participating were glad they did. Johnson County has a program that pays for PTC for parties who are indigent but ordered into PTC by the judge.

One of my legislative proposals for the upcoming session of the Indiana General Assembly will require that the parties in a disputed child custody action meet with a mediator before appearing in court. The mediator will provide an initial report to the court about what the contested issues are and what he or she believes the degree of conflict between the parties to be.

Judges need to be educated on the availability and benefits of PTC so they will recommend or push it on the parties. Having established rules will make the process more effective and help judges to feel more secure in ordering or facilitating PTC.

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Friday, November 19, 2010

A slap on the wrist for Rep Charles Rangel's crimes

On Thursday evening 18 November 2010 the Ethics Committee of the US House of Representatives returned a 9-1 vote in favour of censure for the 40 year congressman. On Tuesday 16 November 2010 the US House Ethics Committee issued its report in this case.

Rangel faced multiple charges in relation to soliciting funds for a charity without registering to do so, illegally receiving apartment units at reduced rates and not reporting income on rental properties and tax evasion. Rangel admitted his failings but asked that he be specifically found to have not personally benefited from the offenses.

Of the possible penalties that could have been imposed the committee selected the middle of reprimand, censure or expulsion. At a minimum Rangel should have been expelled from Congress.

Rangel should now be charged criminally.

There should be a double standard for these elected officials who violate their oath and the law. It shouldn't be in the current form where they are not held accountable. It should be where these officials receive a sentencing enhancement.

When I was tried in US District Court for subletting a town home to someone who didn't pay federal excise taxes on goods stored in that home I was convicted and imprisoned at a high security prison. I didn't gain financially other than having someone else pay the rent while I wasn't living there. I didn't know the goods were being stored there. I didn't know that being the primary lessee made me responsible for his actions.

I wish I had the privileges of public officials. My co-workers could have assembled and decided if they wanted me to be harangued by them or fired instead of me going to prison.

I never took an oath to obey the laws, I never sat on a committee who wrote the tax laws and I didn't benefit from failing to pay the excise taxes in my case and I got sent to prison for over a year at a considerable cost to taxpayers. Rangel did all three and now will face a scolding by his colleagues.

This is an outrage. Rangel should spend his remaining days in prison.

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Tuesday, November 16, 2010

Today is 2011 Indiana General Assembly Organization Day

Today is Organization Day at the Indiana State House. I will let you read for yourself when this occurs and what the members of the general assembly will be doing.

IC 2-2.1-1-2 Sec. 2. (a) The first regular session of each term of the general assembly shall convene on the third Tuesday after the first Monday of November of each even-numbered year to do the following:
(1) Organize itself.
(2) Elect its officers.
(3) Receive the oath of office.

This year will see 23 new legislators joining the general assembly; eighteen in the House and five in the Senate. Today is an opportunity to them to be introduced to the veteran members, become more informed of the process and take the oath of office.

Since the House changes from Democrat to Republican control this session the Republicans will be choosing members for the important committee chair positions. Committee chairs set the schedule for their respective committees determining what bills will get a hearing.

The House committees that will receive the majority of child custody related legislation are the Family, Children and Human Affairs and the Judiciary.

Members generally start arriving to the State House around 10:00am. I believe today's schedule will see the House meet in session at 1:00pm while the Senate will meet at 2:00pm. The day general concludes around 4:00-5:00pm.

While not in session or caucus members are free to tend to their own business or meet with constituents.

Members of the public are invited to attend Organization Day so I encourage you to do so. If you are interested in affecting child custody legislation and would like to meet your legislator today please call me at 317.474.3143 or contact me by email.

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Monday, November 8, 2010

Another Denial of Access to Court Records

The case of Stuart Showalter v County of Boone et al had been scheduled to go try trial today but has been delayed until at least February 2011 because of a scheduling issue involving special judge William Hughes of the Hamilton Superior Court III. The case centers around a dispute that I have with the Boone Superior Court II as to whether I am allowed by statute to use my own recording equipment to make a copy of a court recording while it is played for me in a supervised setting.

As this case approaches it's third year another case is in the works. This time it involves Judge Robert Aylsworth of the Warrick Superior Court II. The requestor had sought access to court recordings in her divorce proceeding but was denied. Her complaint was received by the Public Access Counselor [PAC] on 04 November 2010 and docketed as complaint 10-FC-276.

Unless specifically barred by a court order, usually because of the testimony of a minor child or other sensitive information, domestic relations proceedings are open to the public. In this case no order had been issued sealing the records of the proceedings.

In my case the County of Boone and I have already stipulated and submitted to the court that "The question for the Court to decide is whether the Boone Superior Court II violated the Access to Public Records Act by allowing Showalter to only listen to the recording, rather than providing him a copy of the recording or allowing him to make such a recording using his own equipment." This is supported by the opinion of the PAC, statute and case law.

In 10-FC-276 the requestor complains that when she made a verbal request for access she was told that she may not listen to the recordings because she is 'not an officer of the court.' When she filed a written request with the court she was informed, verbally, that the "tapes of the hearings belonged to the court reporter not the court." and further that "They are not part of public access."

However it is well established that court recordings are public record. In her request she had cited the particular statutes stating that court recordings are part of the public record:
IC 5-14-3-2(m) defines a "Public agency" as "Any board, commission, department, division, bureau, committee, agency, office, instrumentality, or authority, by whatever name designated, exercising any part of the executive, administrative, judicial, or legislative power of the state." [emphasis added]
IC 5-14-3-3(b) states that " A public agency may not deny or interfere with the exercise of the right stated in subsection (a). The public agency shall either:
(1) provide the requested copies to the person making the request; or
(2) allow the person to make copies:
(A) on the agency's equipment; or
(B) on the person's own equipment."
The Court has also violated the Act by not providing a written denial stating who made the denial and the statutory provisions supporting the denial. This is also found in statute.

IC 5-14-3-9(c) If a request is made orally, either in person or by telephone, a public agency may deny the request orally. However, if a request initially is made in writing, by facsimile, or through enhanced access, or if an oral request that has been denied is renewed in writing or by facsimile, a public agency may deny the request if:
        (1) the denial is in writing or by facsimile; and
        (2) the denial includes:
            (A) a statement of the specific exemption or exemptions authorizing the withholding of all or part of the public record; and
            (B) the name and the title or position of the person responsible for the denial.

It is clear from these circumstances that the Warrick Superior Court II has unlawfully denied a citizen of the State of Indiana the right to access the public records of the court. This may be out of ignorance of the law but regardless, there is no excuse for this, especially in light of the fact that the requestor cited the law in the written request.

The Indiana Access to Public Records Act starts with a statement of purpose:
A fundamental philosophy of the American constitutional form of representative government is that government is the servant of the people and not their master. Accordingly, it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information. This chapter shall be liberally construed to implement this policy and place the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record and not on the person seeking to inspect and copy the record.

If you feel you have been wrongly denied access to a public meeting or records and need assistance in obtaining the records please feel free to contact me.

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Sunday, November 7, 2010

Right to Access Court Records Trial 08 November

When Boone Superior Court II judge Rebecca McClure ordered that I was not allowed to attend the criminal trial of a client of mine I knew she was violating Indiana's Open Door Law. So, I immediately made a request for access to the recordings of the proceeding under Indiana's Access to Public Records Act [APRA]. Incidentally, my client was acquitted.

When McClure denied my request stating that the proceedings of criminal trials are confidential I filed a complaint with the Indiana Public Access Counselor [PAC] who is an attorney working for the Indiana Attorney General. McClure then conceded that I was correct, that the recording was not confidential. However, she placed additional restrictions on my access to the recordings that violated the APRA. More about that may be read on the Indiana Coalition for Open Government's website.

McClure had also ruled that I was to use the Indiana Trial Rules when seeking information from the Town of Thorntown about police officers stalking women. McClure reasoned, incorrectly, that since the town has sued me for placing a sign in the window of my home about a child-molestation ring that I could no longer use the APRA.

The Thorntown case was brought after Town Council President Gary Jones freaked out that I was threatening to reveal who was involved in a child-molestation ring. This came after Western Boone Junior High School [WEBO] Assistant Principal Jerry Taylor resigned in 2005 following a sexual assault complaint.

I also had recordings of Jerry Taylor discussing that he had Boone Circuit Court Judge Steve David give extra punishment to children at Taylor's request. One parent told me this was her child being sent to the Henry County Youth Center after Taylor's sexual advances were rebuffed. Other's were sent to the Indiana United Methodists Children's Home [IUMCH] in Lebanon.

Around the same time a student at WEBO who was age 15 at the time sent a letter to me following her arrest and detention at the Boone County Jail complaining of something that happened to her. I made a public records request to the jail and the prosecutor's office seeking access to those records since they are public pursuant to statute. Judge David summarily dismissed the lawsuit against the prosecutor protecting other's in the ring.

The lawsuit against the jail, heard by a different judge, was settled with disclosure of the very few documents that were available and the implementation of a new policy to comply with the recording keeping law of juveniles held at the facility.

In the meantime Judge David had issued a restraining order barring me from receiving additional information from the girl. After the girl delivered additional information to my home Judge David issued an arrest warrant for me. Even though I demanded a trial and wanted to present this information to a jury Boone County Prosecutor Todd Meyer dismissed the charge he had brought.

Finally, in 2008 a worker at the IUMCH was convicted of sexual assault on one of the three girls, all age 15, who I had received complaints from or had information on of inappropriate sexual activity there.

There has been no additional or wider investigation of the child sex ring operating in Boone County but Judge McClure in a document did admit to her involvement in covering it up.

So now Judge William Hughes of Hamilton Superior Court III will decide if the County of Boone has justification for denying access to public records or if the citizens of the State of Indiana will prevail.

The trial will be held at 9:00am in the Boone superior Court I on 08 November 2010. The trial is open to the public by statute and the Constitution. I am confident that Hughes will allow spectators.

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Tuesday, November 2, 2010

Why I am Voting No on the Lebanon School Referendum

The Lebanon Community School Corporation is seeking voter approval for a $40 million bond offering for various building projects. I have attended meetings, read the materials and talked to many people in the community about the $40 million school projects referendum that will be on the ballot this November. There are needs in the proposal but also wishes with unproven educational outcomes.

The school board members, as stewards of our tax dollars, have been entrusted to demonstrate competent management skills in their fiduciary task. As well, they are in a leadership position for our children.

Recently there was not a parking lot near the middle school sports fields although ample parking existed. I was at the meeting where the board voted to spend about $100K on that parking project. One reason disturbed me; because even though there were signs prohibiting parking in that area people were doing it anyway so a parking lot may as well be built for them.

This is modeling behaviour. Most parents don't believe it but children acknowledge that we are the greatest influence on them. Since the adolescent mind does not reason in the same way as an adult we must demonstrate appropriate actions rather than articulate desired outcomes. Developmental psychologist Jean Piaget believed that children made moral judgments based on their own observations of the world.

It's not about parking, it's the rule. The children see that enough people violated a rule then those in a leadership position did away with it to accommodate the rule breakers actions. Apply this thinking pattern to the risky behaviours that adolescents may engage in and the example provided by the school, the steward of your children and the desired $40 million.

It's about leadership, responsibility and placing money in the hands of those who modeled such behaviour. Throwing more money at problems may be ineffective. Proper management of existing funds and understanding child development is better than more money.

Many of us attended schools that didn't have all the luxuries that many modern schools have and we have still been quite successful. What we did have was leaders who understood our needs and modeled behaviour to best accommodate those.

The necessary improvements can be done without a yes vote on this referendum. A no vote is not a vote against the children but may better be seen as a vote in support of the children.

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