Wednesday, December 1, 2010

Notice of Appeal filed in Scarberry custody ruling

The Anderson Indiana man who lost physical and legal custody of his children because he changed his religion from Christian to agnostic has filed a Notice of Appeal with the Madison Superior Court III and the Indiana Court of Appeals. This is the initiation of the appeal process. The appeal has been captioned as Scarberry v Porcaro and assigned cause number 48A02-1012-DR-1278.

Scarberry, who is currently representing himself in the appeal, is being assisted by attorneys associated with the Indiana Custodial Rights Advocates. Although there are three attorneys acting in an advisory capacity Scarberry is still hoping for a lead attorney who will commit to directing the process and approving all pleadings and motions. Additionally, Scarberry hopes that interested organizations or attorneys will file a Motion to Appear as an Amicus Curiae.

Although Scarberry may change the issues to be presented to the court he has stated in a court filing that he will argue these two issues upon appeal;
1) Whether the trial court's order modifying father's joint legal custody of the parties three (3) minor children to awarding mother full legal custody of the children based upon father's change in religious preference from Christian to agnostic and his religious practices, or lack thereof, which did not in any way actually harm or pose a substantial threat of harm to the children creates an establishment of religion or impinges upon father's freedom of religion inviolate of the establishment of religion clause or free exercise of religion clause of the First Amendment to the United States Constitution made applicable to the individual states by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
2) Whether there existed evidence to support the facts and whether the facts supported the findings that there had been a substantial change in one or more of the factors provided for by IC 31-17-2-8 and that a modification of custody reducing father's parenting time was in the best interest of the children.

The Indiana Supreme Court has endorsed the “presumption for shared parenting” and to “give the child lots of contact with two loving parents” as being better for children of divorce. Yet in this case Magistrate Pancol found just the opposite, saying that because Scarberry is agnostic and Porcaro does not feed the children breakfast, left them home alone and does not use child safety restraints for them in the car that it is in their best interest that Porcaro has sole legal and physical custody.

In addition to getting free legal assistance Scarberry is also in need of money for the costs of the appeal including the $250 filing fee and $3200 transcript. If you can donate to Scarberry to help with his costs please contact me. Any funds raised in excess of his needs for this appeal will be used to help advocate for children's rights to parental access.

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