Thursday, January 27, 2011

2011 Indiana SB0084 - Confidentiality of motor vehicle accident reports and CHILD CUSTODY

I want to bring this bill to your attention not because of the bill itself but as a demonstration of why it is necessary for you to be cognizant of the legislation that is pending before the Indiana General Assembly. I have learned the longstanding adage that "the devil is in the details" is nowhere truer than in the legislative process.

Quickly, some background on the phrase. The "Random House Dictionary of Popular Proverbs and Sayings" by Gregory Y. Titelman (Random House, New York, 1996) shows this phrase as a variation of "God is in the details - Whatever one does should be done thoroughly; details are important. The saying is generally attributed to Gustave Flaubert (1821-80), who is often quoted as saying, 'Le bon Dieu est dans le detail' (God is in the details). Other attributions include Michelangelo, the architect Ludwig Mies van der Rohe, and the art historian Aby Warburg. 'The Devil is in the details' is a variant of the proverb, referring to a catch hidden in the details. 'Governing is in the details''and 'The truth, if it exists, is in the details' are recent variants. Listed as an anonymous saying in the sixteenth edition of Barlett's 'Familiar Quotations,' edited by Justin Kaplan."

The title of the bill seems innocuous enough -- "Confidentiality of motor vehicle accident reports" but when I testified before the Senate Committee on Insurance and Financial Institutions this morning I told them I was going to surprise them and make a connection to child custody.

Here is the synopsis of the bill; Provides that, with certain exceptions, a motor vehicle accident report is confidential for 90 days after the date of the accident. Provides that a person who obtains or attempts to obtain an accident report or draft accident report in violation of the law commits a Class A misdemeanor.

You likely don't see the connection to child custody but if you do please call me now. 317.474.3143.

Here is the relevant part of the bill that caught my attention:
Page 2
29 Sec. 4. (a) An accident report may be inspected or copied within
30 ninety (90) days after the date of the accident to which the accident
31 report relates by the following:
32 (1) A person who satisfies the requirements in section 5 of this
33 chapter and certifies under the penalties for perjury that the
34 person is any of the following:
35 (A) A party involved in the accident.
36 (B) A legal representative of a party involved in the
37 accident.
38 (C) A licensed insurance agent of a party involved in the
39 accident.
40 (D) An insurance carrier of a person involved in the
41 accident to which the person has submitted a claim arising
42 from the accident, or a person under contract with the
Page 3
1 insurer to provide claims or underwriting information.
2 (E) A prosecuting attorney.
3 (F) A member of a news gathering organization, solely for
4 the purpose of publishing or broadcasting the news.

I just happened to come across this bill at about 11:00 p.m. Wednesday night. I didn't have much time to prepare. Actually my only prep time was while everyone else testified. I got to go last which I think helped to make a lasting impression.

My testimony was rather brief and simple. I.C. 31-17-2-8 provides the eight statutory factors that a court must consider when making an initial child custody determination or modification of that order. Section 4 provides:
The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling;
(C) any other person who may significantly affect the child’s best interests.

The 'other person' is often a subsequent spouse or live-in boyfriend/girlfriend. This person may be responsible for transporting your child to and from school or to a parenting time exchange. It may even be court-ordered that this person is to be responsible because you and the ex just can't be around each other.

I hope you are starting to see the child custody connection. You may show up to get your child for parenting time and see a smashed car in the drive. Your first thought is likely, "Was my child in that wreck?" and secondly, "Who was driving?" and finally, "Who's fault was it?" You could ask that former spouse whom you have had a very contentious relationship with and may actually be prohibited from through a protective order. Either way I am betting the truth would prove elusive. The other option is to seek the police crash report.

It could be a meaningless collision in this aspect of your child or it could be the start of a drug/alcohol related problem that a court needs to address.  The report may indicate that the other parent's spouse was broadsided by someone who ran a stop light and your child was not in the vehicle. It may, however, indicate that the driver blew a .07 BAC. Not enough to get arrested and charged but still enough to be a concern about the best interest of your child. It this is part of a pattern of sometime of reckless behaviour then it is certainly relevant to a modification of custody proceeding.

I wouldn't want any child to have to potentially be in a dangerous situation for an additional 90 days if it could be avoided.  If the media can get access to the report then so should parents who have a vested interest in the driving habits and collisions of the people in the household where their children live or spend significant time.

Members of the committee agreed as did some of the insurance industry lobbyists who were stunned at the potential impact that this bill could have on child welfare and custody litigation.

So, I have drafted the following amendment to the bill.

Page 3, line 4, insert (G) The parent, guardian or custodian of a child who resides or, who pursuant to a court order, spends parenting time in the household of a party involved in the accident.

I will be pursuing this amendment to the bill. If you care to search through the bills for any similar child custody related provision please click here for the list of pending legislation. Click here for the list of bills that InCRA is following.

Stuart Showalter's Political FaceBook page


Indiana Custodial Rights Advocates

©2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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