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
In a 2007 appeal of the grant of a custodial mother's relocation pursuant to the Indiana Relocation Statute [IC 31-17-2.2 et seq] a panel of the Indiana Court of Appeals approved the mother's relocation. Judge James Kirsch gave a compelling dissent that deserves mention.
In 2009, the Indianapolis Bar Association presented Judge Kirsch with its highest award – the Hon. Paul H. Buchanan Award of Excellence in recognition of “his notable attainments as a lawyer and honorable service to the legal profession over an extended period time.”
Judge Kirsch and his wife Jan have two children, Adam and Alexandra. Judge Kirsch was retained on the Court in 1996 and 2006 and stands again for retention in the 2016 fall election.
In the present case the panel found that mother could relocate to Texas while father stayed in Indiana without disrupting the relationship between father and the children. Father had children three overnights per week and although he was not the primary person responsible for tending to the children's frequent medical appointments and daily needs he was still significantly involved.
In a custody evaluation by Dr Richard Lawlor, Lawlor opined that both were fine parents and he could not make a recommendation as to whether the relocation should be allowed or who should have custody.
Ultimately, the trial court found that it was in the best interest of the children to relocate to Texas and be near mother's extended family.
KIRSCH, Judge, dissenting. How can depriving children of the presence of their loving and caring father in their daily lives be in their best interests?
My colleagues conclude that Father failed to carry his burden that Mother’s relocation to Texas was not in the best interests of his children without raising or answering this question. To me, it is of paramount importance. These children’s father will not be there to attend their birthday parties, school functions, recitals, concerts, science fairs, athletic contests, and extracurricular events. Their father will not be there for parent-teacher conferences. Their father will not be there to take them to school in the morning or to pick them up in the afternoon. Their father will not be there for their doctor and dentist appointments. Their father will not know their teachers, and he will not know their friends. Their father will not be there as they move into and through adolescence with all of its attendant challenges.
The choice before the trial court and here is not a custody determination between parents who live in different places. Mother said she would not move if the trial court denied it. Rather, the choice is between whether the children should live in the same community as both of their parents or should live with one parent several hundred miles away from their other parent. To me, the better choice is obvious.
The preamble to the Indiana Parenting Guidelines states that the Guidelines “are based on the premise that it is usually in a child’s best interest to have frequent, meaningful and continuing contact with each parent. It is assumed that both parents nurture their child in important ways, significant to the development and well being of the child.” Mother’s move to Texas will make such contact and such nurturing impossible.
I respectfully dissent.
I respectfully say that the children in Indiana would be in a much better position following familial breakdowns if we had trial court judges who would follow the lead of Judge James Kirsch. The first question judges should answer is: How can depriving children of the presence of a loving and caring parent in their daily lives be in their best interests?
If you need help with a relocation proceeding or any other child custody action please contact me.
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 common complaints I get from parents is that they are being denied custody rights of or parenting time with their children in some form. For legal custody this can be making medical decisions, enrollment in activities or a change in religious practices or attendance without consultation with the parent who shares custody. For parenting time this varies from first-right-of-refusal issues to outright denial of extended summer parenting time.
In this article I am going to limit my presentation to issues related solely to parenting time. Although the Indiana Interference with Custody statute [IC 35-42-3-4] is permeated with language about "child custody rights" the statute wholly relates to parenting time rights. The statute was last amended in 1990. It hasn't been until the last ten years that we have full embraced using the term "parenting time" to refer to physical custody.
Interference with parenting time is a crime in the State of Indiana.
(a) A person who, with the intent to deprive another person of child custody rights, knowingly or intentionally: (1) removes another person who is less than eighteen (18) years of age to a place outside Indiana when the removal violates a child custody order of a court commits interference with custody, a Class D felony. (b) A person who with the intent to deprive another person of custody or parenting time rights: (1) knowingly or intentionally takes; (2) knowingly or intentionally detains; or (3) knowingly or intentionally conceals; a person who is less than eighteen (18) years of age commits interference with custody, a Class C misdemeanor. However, the offense is a Class B misdemeanor if the taking, concealment, or detention is in violation of a court order.
Interference with parenting time does more than deprive a parent of the opportunity to spend time with his or her child. More importantly the child is deprived of his or her right to a consistent and reliable relationship with the parent from which everlasting bonds will be built.
Denial of parenting time has little if any consequences, especially criminally. Although existing in statute penalties are rarely imposed. I look to Minnesota for a model of where I would like to see the development of laws in Indiana.
In her landmark study, "Surviving the Breakup," researcher Joan Berlin Kelly found that as many as 50 percent of custodial mothers routinely and actively tried to sabotage father-child relationships.
The following are the remedies for denial of or interference with court-ordered parenting time in Minnesota. All parenting time orders must include notice of the relevant provisions of Minnesota law. If the court finds that a parent has been deprived of court-ordered parenting time, then the parent who has interfered must make up parenting time to the other parent in most cases. If compensatory parenting time is awarded, additional parenting time must be: 1.at least of the same type and duration as the deprived parenting time and, at the discretion of the court, may be in excess of or of a different type the deprived parenting time; 2.taken within one year after the deprived parenting time; and 3.at a time acceptable to the parent deprived of parenting time. If the court finds that a parent has wrongfully failed to comply with a parenting time order or a binding agreement or decision, the court may: impose a civil penalty of up to $500 on the parent; require the parent to post a bond with the court for a specified period of time to secure the parent's compliance; award reasonable attorney fees and costs; require the parent who violated the parenting time order or binding agreement to reimburse the other parent for costs incurred as a result of the violation of the order or agreement or decision; or award any other remedy that the court finds to be in the best interests of the children involved.
The Canadian The Family Justice Review Committee believes in a number of basic principles when it comes to the issue of interference of parenting. Some of these principles are: That parents who interfere with a child's parenting time with another parent are indeed perpetrating a form of emotional abuse and that interference in a parent-child bond may not only produce lifelong alienation from a loving parent, but lifelong psychiatric disturbance in the child. A parent who interferes with access is bringing about a disruption of a psychological bond that could, in the vast majority of cases, prove of great value to the child, regardless of the relationship between the parents. Parents who interfere with access are failing to act in the best interests of their own child and are in fact failing in their duties as parents. That the courts must give serious consideration to interference of parenting when deciding the custodial status of the parent.
There are times when facilitating parenting time will not be possible. Not all of these will be considered a denial of parenting time. Sitting in a doctor's office 45 minutes after the scheduled appointment before getting seen is certainly excusable. Doing like my ex wife and scheduling her own appointment for 3:30 at a location a half hour away from the exchange site and then calling at 4:05 to say she was just leaving the doctor's office was intentional interference. The Indiana Parenting Time Guidelines [IPTG] contemplate circumstances where facilitating parenting time may not be possible. Canceled flights, medical emergencies, distant relatives coming in for the weekend, and such.
Whenever there is a need to adjust the established parenting schedules because of events outside the normal family routine, the parent who becomes aware of the circumstance shall notify the other parent as far in advance as possible. Both parents shall then attempt to reach a mutually acceptable adjustment to the parenting schedule. If an adjustment results in one parent losing scheduled parenting time with the child, “make-up” time should be exercised as soon as possible. If the parents cannot agree on “make-up” time, the parent who lost the time shall select the “make-up” time within one month of the missed time. - IPTG I(C)(2)
Next year I plan to introduce comprehensive child custody notice legislation in the Indiana General Assembly. If you have ever seen a No Contact Order [this is likely if you've gone through a contested child custody proceeding] you know that there is an advisement page stating the possible penalties for violating the order. Just as Minnesota has done I would also like to see an advisement page added to Indiana child custody orders.
I want the statutes about modification of legal custody or parenting time to be included on the advisement page. Many parents are not even aware of the "eight factors" enumerated under IC 31-17-2-8. Also a brief listing and location of some of the provisions in the IPTG that lead to the most contempt actions such as first-right-of-refusal and sharing of school records.
I believe this is important because interference with parenting time in addition to possible criminal penalties can be a basis for modification of custody or parenting time.
When the custodial parent denies visitation rights to the other parent without evidence that the noncustodial parent is a threat to the child, it may be proper based upon the circumstances for the trial court to modify custody. Bays v. Bays, 489 N.E.2d 555, 561 (Ind. Ct. App. 1986), trans. denied.
“Fostering a child’s relationship with the noncustodial parent is an important factor bearing on the child’s best interest and, ideally, a child should have a well-founded relationship with each parent.” In re Marriage of Kenda and Pleskovic, 873 N.E.2d 729, 739 (Ind. Ct. App. 2007), trans. denied.
“When the custodial parent denies visitation rights to the other parent without evidence that the noncustodial parent is a threat to the child, it may be proper based upon the circumstances for the trial court to modify custody.” In re Marriage of Kenda and Pleskovic, 873 N.E.2d 729, 739 (Ind. Ct. App. 2007), trans. denied.; see also Hanson v. Spolnik, 685 N.E.2d 71, 78 (Ind. Ct. App. 1997), trans. denied.
In the reality of family law courts punishment for interference with or denial of parenting time is a rarity. Much more often you will certainly find the resources of the courts and prosecutors being dedicated to the enforcement of child support payment orders.
However, one of the most effective ways to ensure that child support payments are made is through the issuance of substantive parenting time orders and enforcement of those orders.
A majority (81.7 percent) of the 6.4 million custodial parents due child support payments in 2007 had arrangements for joint child custody or visitation privileges with the noncustodial parent. This is a decrease from 1993, when 85.6 percent of custodial parents due support had joint custody or visitation arrangements. Among this group, 78.3 percent received at least some child support payments in 2007. Of the custodial parents due child support who did not have either joint custody or visitation arrangements, 67.2 percent received child support payments. - US Census
One recent study found that only 1.9 percent of non-custodial parents who had access to their children didn't pay what they owed. But when access was denied by the custodial parent, the non-payment topped 60 percent.
In a 2006 issue of Children’s Voice Magazine comes the following information; The government spends roughly $4-billion on child support enforcement while at the same time it spends only $10 million on parenting time enforcement. The government, using our tax dollars, spends 400-times more money on collection efforts than it does making sure that children get to spend time with the parent, usually a father, when the other parent is willfully violating parenting time orders.
There is a new section that I believe I will be successful in having added to the IPTG as the Domestic Relations Committee works this year on amending the guidelines. That is Virtual Visitation also known more formally as electronic communication time.
This will provide guidelines as to the usage of cell phones, on-line chat, texting, Skype and other forms of electronic communication that parents and children may use to stay in touch with each other. Once I know how it will be added to the IPTG I want to amend the criminal statute to include interference with electronic communication time such as blocking a parent's phone number, "defriending" or blocking a parent on social networking sites or denying the child access to the devices during the times the parent may be trying to make contact.
Ultimately policy makers, prosecutors and judges need to adjust rulings, dedicated resources, laws, guidelines and policies to reflect what is truly in the best interest of the children; that children are entitled to establish and maintain bonds with their parents without interference from either parent.
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.
Admittedly I have not been a long-time participant in the legislative process at the Indiana State House. Those who have been still have not seen anything like the walk-out by Democrat lawmakers in 2011.
The last time there was a walk-out was in 1864 and was based upon ratification of the 14th Amendment.
This time the purpose for boycotting the session is not as clear. We are now close to setting a national record for the duration of the legislative strike as Brian Bosma has called it.
I spoke to Bosma soon after the 2010 election and again on Thursday 17 March 2011 before he went into the House chambers and made this announcement. On both times it was clear that Bosma would be firm in his resolve to support legislation that would remove the long standing barriers that have reduced the opportunities for children in Indiana to flourish.
I have some rather strong feelings about this situation and my reasons for them. First, let me disclose that I do not hold an allegiance to either of the two parties. I actually refer to them as the two-factions of the Incumbent Party. I am about as independent as you can get. I do tend to favour Republican fiscal policies while seeming to side more with Democrats on social issues. That is almost a contradiction within itself. Libertarians are the people who I find myself at home with although I have some substantial differences with them in areas where I feel there should be government regulation or involvement.
I have run and been elected on the Democratic ticket but get invited to and participate in more Republican election activities.
As for legislation I have always enjoyed bi-partisan support. In fact, it is not good enough for me to get a bill passed by a simple majority. I know that one day I will face the point at which I am going to have to accept that not everyone is going to support my legislation but until that time I want and demand of myself that I get unanimous support.
So with that said it matters not to me whether the absentee legislators are Republicans, Democrats or any other party that may come along. What matters is that they were elected to do a job which they are not doing.
I can't recall any campaign where I have heard a candidate proclaim that, if elected, he or she will abandon the legislative body and process as a means by which to propound a political agenda. I have heard it said though that this is a viable means by which to prevent the majority from ramming legislation down the throats of the minority. This is one of the fundamental principles of our constitutional republic; that we allow the majority to rule while protecting the rights of the minority.
Democracy in its purest form is said to be two wolves and a lamb voting on what's for dinner. As an agnostic I am very thankful and appreciative of the Freedom of Religion Clause in the First Amendment to the United States Constitution. Freedom of religion is not only the right to practice the religion of ones choosing but also to not practice religion at all.
Some of my fellow agnostics may find themselves at odds with my position on religion and government - that within the halls of government I believe it is perfectly acceptable to open some proceedings with prayers or display religious texts such as the Ten Commandments.
While maintaining the inalienable rights of the individuals I do feel we should then be subject to the rule of the majority through a representative government. I also believe that referendum should be used in very limited circumstances. Referendum often becomes the vote of those with the most money.
So, as for the walk-out that has occurred this year I have just one word that covers my feelings completely: disappointed.
These are legislators that I know. People that I have worked closely with on bills. Individuals that have discussed their opinion, the position that represents their constituency and what it would take to gain their full-support for legislation for which I advocate. Yet now, some of that very legislation that would serve to benefit children who are in the thralls of an abusive home-life or otherwise subject to harm has been defeated.
I think that it is inexcusable to avoid the legislative process. It may very well be true that the majority party will pass legislation opposite to the will of the minority party and their constituency. But that is our process.
If the majority is successful in passing legislation that violates the rights of the minority then we have the opportunity for relief through our judicial branch of government. It is inappropriate for legislators to attempt to usurp the authority of the judiciary by not allowing legislation to be passed.
I believe that during the hearings on the legislation that those who are in opposition, be they constituents, lobbyist or legislators, make their voices heard at that time. Give me a reason to side with you in opposition. You may give me a reason to support your party in the next election.
What I am hearing today is that other than the budget the Democrats will not be returning to finish any legislation that is currently pending.
By avoiding the legislative process though I can not find any reason to support those who have done so and, regardless of their platform, I would advocate for the election of those who promise to serve by participating in the session.
If you would like to participate in the legislative process when it resumes please contact me.
If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.
Divorce and separation should be about dissolving the cohabitation, shared lifestyle and co-mingling of finances between two adults. It should never be about separating the children from a parent unless there is clearly substantial abuse of the child by that parent. Yet, abusive parents often use the child as a pawn for retribution against the other parent, as a hostage for a beneficial settlement of property or as leverage to obtain a high child support payment order.
If you are in a contested child custody battle then it is important that you recognize what Parental Alienation is, what you can do as a loving parent to ensure that you do not engage in it and how to combat it when the other parent is alienating your child from you.
Much of the information I will be providing here was gleaned from Parental Alienation Awareness Organization. I encourage you to visit their website if you feel that your child may be experiencing Parental Alienation or if you feel you may be at risk of alienating your child from the other parent.
Here are a few things that may indicate that you may be at risk of alienating the other parent. ~ you feel overwhelmed by hurt feelings from the actions of the other parent; ~ you don't want reminders of or items from the other parent in your home; ~ you want to "get back" at the other parent; ~ you feel that you need to protect your child from the other parent; ~ you want your child to affirm that you were correct; or ~ you want sole custody
I am not going to give a full examination of Parental Alienation but, instead, I will just examine a few points and how this may be viewed in the courts and typically what to expect from courts.
First, you should know that your child may side with the alienator. There are reasons for this that may be logical to the child. These include that the child feels the need to protect a parent who is depressed, anxious, or needy. The child may also want to avoid the anger or rejection of the alienating parent.
Parental alienation syndrome [PAS] is the term coined by Richard A. Gardner in the early 1980s to refer to what he describes as a disorder in which a child, on an ongoing basis, belittles and insults one parent without justification, due to a combination of factors, including indoctrination by the other parent and the child's own attempts to denigrate the target parent. Gardner introduced the term in a 1985 paper, describing a cluster of symptoms he had observed during the early 1980s. There is dispute among the psychiatric and legal community as to whether such a condition exists.
The Ocala Divorce Law Blog had this to say in a posting about the effort to get the American Psychiatric Association [APA] to include Parental Alienation in the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders [DSM-5] Dr. William Bernet, a psychiatry professor at the Vanderbilt University School of Medicine, said it was "flatly ridiculous" for the APA to contend there is not enough information available to warrant including parental alienation in the DSM. He cited legal developments and new research in numerous foreign countries. His proposal defines parental alienation disorder as "a mental condition in which a child, usually one whose parents are engaged in a high conflict divorce, allies himself or herself strongly with one parent, and rejects a relationship with the other parent, without legitimate justification."
Since the APA has not included Parental Alienation in the DSM some judges will not accept any evidence of or conclusions that a child is afflicted by PAS. However, there are some specific behaviours that when taken as a whole can lead to only one conclusion.
I have worked on numerous cases where parental alienation seemed evident. During the initial interview process I ask about the opposing parent and the child. As these behaviours are being described to me I am considering then how is it that I can present, in detail, some of the additional behaviours of the parent or child involved in alienation to the court?
Here are some of the behaviours that an alienating parent will engage in; • Inaccurately or untruthfully telling the child about the rejected parent, or suggesting they are unsafe or dangerous. • Inappropriately confiding adult information with the child. • Throwing out gifts and letters from the rejected parent. • Calling excessively during time with the rejected parent. • Forbidding any reference to, or photos of the rejected parent. • Scheduling activities that compete with time with the rejected parent. • Monitoring or forbidding communication or time with the rejected parent • Withdrawing love, inducing guilt for having fun or feeling love toward a rejected parent. • Forcing the child to choose between parents. • Creating conflict between the child and the rejected parent. • Giving the child parental decision making authority, ie whether to visit with the rejected parent. • Refusing to provide the child’s information (medical, educational, etc.), to the rejected parent. • Not inviting/informing the rejected parent of important events. (awards, honors, graduations, etc) • Refusing to provide others with the rejected parent’s contact information. • Rewriting history to reduce a rejected parent’s role in the child’s life.
There are classes that may be required of divorcing or separating parents in addition to standard conditions that courts will include in custody and parenting time orders. These often include efforts to mitigate some of the behaviours I have just listed.
Because there is such a reluctance by the courts to acknowledge parental alienation it is difficult to run into court and ask a judge to order the offending parent into counseling. Instead, I suggest a plan that includes reference to specific behaviours that the court has already acknowledged.
Since the alienator will engage in a specific set of bevaviours then I would offer to the court, through an Information for Contempt, those that are specifically acknowledged in the court order or the Indiana Parenting Time Guidelines.
Monitoring or forbidding communication or parenting time with the rejected parent, refusing to provide the child’s information (medical, educational, etc.), to the rejected parent, giving the child parental decision making authority, ie whether to visit with the rejected parent, and not inviting/informing the rejected parent of important events (awards, honors, graduations, etc).
The clearest order of a court is going to be parenting time. The less knowledgeable parent or attorney may counter the parenting time violations with the argument that the child chose not to participate or that he or she felt the targeted parent was unsafe for the child.
While courts are less likely to find a parent who expresses a safety concern to be contemptuous it does fit the alienator pattern. The parenting time violations and to a lesser extent the interference in communication will lead to a finding of contempt.
The parent who constantly calls the child to "make sure everything is okay" or because he or she "is concerned" or "worried" or who is excessively clingy at the parenting time exchange is using a technique to alienate the child. Essentially the alienator is transmitting to the child a fear of the targeted parent, raising anxiety in the child while engaged in parenting time.
If this can be brought out in the testimony from the contemptuous parent then you are a giant leap closer to getting the court to recognize that the parent is an alienator.
The second area in which I seek to bring out evidence of a parent being an alienator is through exchange of information. The IPTG are rather clear about what is required of a parent as it relates to communicating information from the school or a doctor to the other parent.
I reiterated this point to the Domestic Relations Committee [DRC] today when speaking about Indiana House Bill 1422. The DRC will be altering the language about parental notification. It will soon be clearer as to exactly what information a parent is required to transmit to the other parent.
In summary it is important that you learn about parental alienation because you don't want to be an alienator but also need to recognize if your child is being alienated from you. Parental Alienation is child abuse. It does psychologically damage the child. Although I can create strategies which will use a parent's alienating behaviours against him or her I would much rather have your child not go through it to begin with.
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.
In reviewing police reports and potential criminal cases a prosecutor must balance the severity of the crime, the deterrent effect of a prosecution, the likelihood of a conviction, the resources that must be expended, the wishes of the victim(s) and what will ultimately best serve the community.
In the case where Brandon Galbraith attacked Craig Scarberry during a parenting time exchange these factors are all in play to varying degrees. Initially, Mr Galbraith was questioned by police and denied the accusation but eventually admitted to the crime. He was subsequently charged with a Class A misdemeanor battery. However, on 10 March 2011 the charges against him were dismissed without prejudice. Thus, the charges may still be refiled, which is my intention and I will explain why after some further background on the role of a prosecutor.
The prosecutor has absolute discretion on whether to file charges. The concept of prosecutorial discretion is long held and well known in our system. See, e.g., State v. Winne, 12 N.J. 152, 172-74 (1953). The decision to prosecute "generally rests entirely in [the prosecutor's] discretion." see Bordenkircher v. Haves, 434 U.S. 357, 364 (1978). This discretion is especially firmly held by the criminal prosecutor. see Oyler v. Boles, 368 U.S. 448 (1962); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); Powell v. Ratzenbach, 359 F.2d 234 (D.C. Cir. 1965).
The prosecutor is vested with this power through the executive branch of the government. The separation of powers provides that "[a] judge in our system does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them." see United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir.1992).
The prosecutor still acts in a quasi-judicial role though. The prosecutor must balance the wishes of the victim against protecting the rights of the accused. He cannot be an advocate solely for either. The United States Supreme Court in Berger v. United States, 295 U.S. 78, 88 (1935), declared: "The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer."
In the case at bar we have a scuffle between two adult males. It went beyond a simple barroom shoving match in which Mr Scarberry, although he made a hospital visit at a cost of $4,000, was not permanently disfigured or disabled. So there are certainly crimes out there that may be of greater importance in prosecuting based simply on an offense level. However, I believe there is a clear distinction in this case.
The children's mother, Christine Porcaro, began an antagonistic relationship with Craig a year ago when Glabraith came onto the scene. Scarberry's first interaction with Galbraith was a series of text messages wherein Galbraith tried to establish his dominance and taunted Craig to come over and see what happens. Soon after, Craig obtained an ex parte order for protection against Galbraith which he ultimately dismissed in an effort to promote civility between the three adults.
Galbraith would have none of it and continued to cause disturbances in front of the children in addition to continuing the pattern of harassing text messages.
There were some unique circumstances surrounding the 11 November 2010 attack. Typically, Galbraith would drive Christine to the parenting time exchanges, which had been taking place in public areas, while she managed the children. However, on this date, Christine sent a text to Craig asking him to come to her house for the exchange. Craig declined and instead insisted on meeting at McDonald's. Porcaro at that time had an order for protection against Scarberry which prevented him from coming to her home.
There is where Galbraith, who was in the passenger side of the vehicle, exited and attacked Scarberry as he approached the vehicle. It is my belief, based upon these subtle changes in routine, that Porcaro had planned this attack with Galbraith. Porcaro has essentially committed an act of domestic violence through a surrogate. Moreover, the children were in the car and witnessed the attack. Although terrorized and crying, Porcaro did nothing to stop the attack or assuage the children's anxiety. Had Porcaro actually committed the physical attack rather than direct someone else to do it the offense would have been a felony.
This is the compelling reason that I believe this case should be prosecuted. Adamson and Thompson (1998) found that children from homes in which there were domestic violence were nine times more likely to use verbal or physical aggression to intervene in parental conflict than were children from violence-free homes (27% vs. 3%). Porcaro is teaching these children that conflict should be resolved through violence.
I am not asking that bed-space be reserved for Mr Galbraith at the Madison County Jail. I could be satisfied with less than a plea-bargain. Considering his admission to the police of the elements of the crime I think Mr Galbraith would be well-informed to accept pre-trail diversion in this matter.
Here is some information about pre-trail diversion.
The National Association of Pretrial Services Agencies Standards on Pretrial Diversion describes pretrial diversion, also called pretrial intervention [PTI], as a dispositional approach that has the following elements: 1) It offers persons charged with criminal offenses alternatives to traditional criminal court proceedings; 2) It permits participation by the accused on a voluntary basis; 3) It occurs no sooner than the filing of formal charges and no later than a final adjudication of guilt; and 4) It results in dismissal of charges, or its equivalent, if the divertee successfully completes the diversion process.
John Clark of the Pretrial Justice Institute describes the diversion process in the following way. Eligible defendants will apply for admission into pretrial diversion. They will be screened by a pretrial diversion program and a decision made by either the prosecutor or the court to accept or deny the application. If accepted, participants enter into an agreement, usually with the prosecutor but in some jurisdictions with the court, to abide by certain terms, such as attendance at counseling, community service, or restitution to victims. Their criminal case is held in abeyance while they are in the diversion program. If they abide by the terms within the diversionary period the charge is dismissed. If they fail to do so, the diversion is terminated, and their case is reinstated to the court docket for prosecution.
On Friday 10 March 2011 Mr Galbraith appeared at a hearing on a Petition for a Protective Order. There he was placed under oath and testified. Much of his testimony directly contradicted that of Craig Scarberry, the information in the police report and the report of Child Protective Services. It is my firm belief that he perjured himself in that proceeding.
This included his testimony that Craig initiated the attack and that Galbraith was only defending himself. He also testified that there were no other incidents of his being in a physical altercation with Scarberry. Likewise he denied that there was a pattern of intimidating or threatening communication. Yet, I have read the texts and prior Protective Order.
If, as Mr Galbraith claims, this was one isolated incident in which he was just defending himself then pre-trail diversion would be appropriate. Rather than dismiss the charges I believe that the prosecutor, Rodney Cummings, should offer pre-trail diversion to Galbraith.
Cummings and I spoke briefly on Friday. Actually it would be better characterized as he listened to me. As much as I don't agree with much of the way the judicial system operates in Madison County I must commend these public officials for always calling me. Cummings informed me that he would look into the case again.
Cummings has to make a choice; will he honour the will of the people who want to see children protected from exposure to violence like this, or, will he give the green light to people who have yet to be convicted to keep continuing their criminal activity?
If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.
I currently have a few clients who have attorneys doing their courtroom work for them which gives me time to work on the parents lives and not trying to teach them how to represent themselves.
Much of the focus on child custody battles has been on the legal procedures and subsequent strategy. This is usually court-room based but there is an equally important, though often overlooked, strategy that you must dedicate time and resources to if you want to ensure that you have every advantage possible and a healthier parent-child relationship. Those are primarily parenting behaviours.
There are eight statutory factors listed in I.C. § 31-17-2-8 that a court must consider. These are the first factors that must then be discussed in developing a plan on how to examine your parenting behaviours in the context of a child custody battle. These are; (1) The age and sex of the child. You can't change these but what we can work on is ensuring that you are fit to provide care for a child of these particular demographics. (2) The wishes of the child’s parent or parents. This comes in two parts, one you will have little control over. The other you can have significant control over including the way you present it. I have seen a father go into court and say, "I want just as much time with my child as his mom gets". I can show you the correct way to ask for the same thing by making it child-focused rather than appearing only as wanting to divide the child like a bank account balance. (3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age. There is more that you can do about this than you likely think, especially if you have regular parenting time. However, you should know that this factor is not given nearly as much weight as most parents think. (4) 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. If these are people in your household or life then you can significantly affect those relationships. For the people in the other parent's life you can still get information about your child's relationship with them while not engaging in the improper interrogation of your child. I will show you some creative ways in how to do this. (5) The child’s adjustment to the child’s: (A) home; (B) school; and (C) community. This is an important factor and given significant weight. If you are the custodial parent then this will be rather easy for you to demonstrate but is not automatically in your favour. Being a non-custodial parent is more of a challenge but also manageable while not engaging in the improper interrogation of your child. (6) The mental and physical health of all individuals involved. Here is where it gets rather complicated and often where the most work needs to be done. I can demonstrate to you how your mental and physical health is considered by the court. You will be positioned to show how your health is advantageous to your child while the other parent's health condition may be detrimental. (7) Evidence of a pattern of domestic violence by either parent. This is one that it either did or didn't happen. However, there are ways to mitigate or aggravate this factor. (8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter. There is often conflict over what constitutes a de facto custodian. I can show you how to use this to your advantage or mitigate it to your advantage.
Those are just the minimum requirements for the court. There are many more considerations that can be raised. This will be sensitive to your family dynamics but some things are universal. While still not acknowledged in the DSM many courts are now recognizing Parental Alienation. As a parent you want to ensure that you are not alienating your child from his or her other parent.
I have associates who can coach you specifically about this if I feel you need it. You can also be taught how to recognize and combat Parental Alienation if you are the target.
Who are you as a person? Some deep introspection will be beneficial. Are you a dependent person; needing drugs, sexual partners, constant thrills or an extensive support network just to make it through the day? Or maybe you are a parent who has a seat cushion permanently attached to your posterior while the muscles in your eye have become fixed on a focal point that possibly by chance just happens to be the same distance as the couch to your television or the chair to your computer screen.
What is your civic involvement and where do you reside on the scale between givers and takers? I am not going to magically transform you into parent-of-the-year but I can help guide you into displaying the actions and behaviours that will be most favourable to you in the fight for custody.
Ultimately though, it is going to be you who will have to commit to fulfilling your duty to provide for the best interest of your child. This may require that you not fight at all.
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.
Over time I have consistently had an increase in requests for my assistance. This includes assisting attorneys, lobbying, advising policy-makers and assisting litigants managing themselves through child-custody litigation. Throw on top of that my political activities during election times and it's easy to understand why I cannot assist everyone who desires consultation with me.
Assisting the ACLU with the Craig Scarberry case and getting his parental rights reinstated and children returned to him, at least until the appeal can be decided, has only increased this demand. Top that off with Craig mentioning me by name on MSNBC and it becomes crystal clear that maybe I should be giving thanks to our Democrat legislators, who have gone on strike and are manning the picket conference room in Illinois, for allowing me time to sleep.
To relax and get some semblance of leisure time I write this blawg.
So with my time this stretched I cannot assist everyone who asks me. Often times people simply disqualify themselves through contact with my scheduler. This filter has been the most beneficial thing for myself and parents whose children need my assistance in helping regain or build their relationship during a custody conflict.
Someone who is unable to take the small steps of completing an application, setting up an appointment to meet with me and then actually arriving for that meeting with the requested documents won't get my help. It's not just that the opportunity to get started has been missed but, more to the point of parenting, those few tasks are minor compared to the demands that will be placed upon anyone to raise a child.
There is no way that I am going to support a parent in a fight to get custody or parenting time with his or her child unless that parent also meets my moral standards. This is the reason I have always required that potential clients complete an application.
Yesterday I received a follow-up email from a potential client who said that she spoke to an attorney about her case. In short the attorney didn't paint a hopeful picture so she said she decided to give up and won't be seeking my assistance.
This provides me with the opportunity to make a point on two things. First, when you see an appellate decision that says "affirmed" or "reversed" that usually means that one of the two attorneys was wrong. Sometimes an Appellee doesn't file a brief [argue the case] or a litigant is pro se, but in most cases an attorney is wrong in his or her interpretation of the law or the facts.
Second, refer to the Scarberry case. Had it not been for my consultation with his appellate attorney Craig's children would still be denied medical care and be subjected to further alienation from him. This is because the Motion to Stay the trial court's judgment, written by Ken Falk, would not have been filed. It is an unusual application in a child custody decision under appeal but based upon my observations I was confident that it was appropriate in this case and would be granted although I never personally revealed that to Craig.
Point to be made here is that this potential client got the opinion of one attorney and then completely discounted my expertise in the field of parent-child relationships. It's like having a heart attack and then going to your GP with chest pains a week later, being told it's probably not heart related and then canceling your appointment with your cardiologist based upon your GP's "probably". Just as a cardiologist is a specialist as compared to a GP, I am a child custody consultant only as compared to most attorneys who practice across multiple disciplines and are concerned primarily with only the legal aspects of the parent-child relationship.
If you wouldn't care anymore about your own health than that, and would apply the same to your child, then I don't want to assist you in your quest to get the authority to make those types of decisions for your child.
Once some of these people weed themselves out there is still more than I can handle. What I look for are parents involved in cases that will have wide application. Primarily this is done through appeals where, if an opinion is published it can then be applied in future cases and provide guidance to other parents about court's views on parental behaviours. I suspect that the Scarberry case will get published.
Another way is through legislative action. Cases that clearly demonstrate and provide support for the need of legislation that affects child custody always piques my interest a little more than those which are typical cases.
Ultimately though my decision on whether to dedicate myself to a parent will be dependent upon whether the parent's desire will serve the best interest of the children. I will determine this through an interview where I will not be fooled. So, if you want my assistance then the first thing you best want is what is best for your children, the parent-child relationships, and a workable parent-parent relationship. Any hostility or animosity towards the other parent, desire for retribution or longing for "your rights" and "justice" should be left in the past.
I am willing to work with you and your children for the now and the future. I'll follow this posting with - Molding your lifestyle to win a child custody battle - where I will touch upon all the services I provide in ensuring that you are the best parent you can be for your child and what you should anticipate the judicial preferences for parental behaviour to be in a contested child custody battle.
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.
