Friday, March 4, 2011

Civil Protection Orders in Child Custody Proceedings

The stated purpose of the Indiana Civil Protection Order Act [IC 34-26-5 et seq] is to provide for the "protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner; and prevention of future domestic and family violence."

The Act provides that a person who is or has been a victim of domestic or family violence may file a petition for an order for protection against a family or household member who commits an act of domestic or family violence, stalking, or a sex offense. The Petition for an Order of Protection is an independent action and requires no filing fee. The Act further provides that relief may not be denied because of a lapse of time between the alleged act and the time of the filing of the petition. There is also no minimum residency requirement. Thus, although to the extreme, a one-night-stand from 20 years ago could file a petition and ask for occupancy of your home.

Civil protection orders are not mutual. Judge are actually forbidden by statute from making mutual orders. This prohibition has been used to allow the "protected person" to invite the target of the order over to talk about reconciliation and then have sexual relations. Before the target is able to leave the house the police are there and he or she is arrested.

It's not difficult to see how this type of one-sided restriction could be systemically abused, and it is. Especially in child custody battles. You may read more about this in the testimony I was invited to give before a committee of the Indiana General Assembly.

I have recently been involved in two child custody cases where abuse of Civil Protection Order Act has been an issue.

The first involves our beloved 'Mother-of-the-Year' Christine Porcaro. If you have been following my postings on the Craig Scarberry case then you are quite familiar with this demon who harms her own children to get back at Craig for divorcing her.

Although Porcaro claims to be the victim of domestic violence and that she is fearful of Craig, she is the one that drove her boyfriend, Brandon Galbraith, to a McDonald's parking lot where Galbraith exited the passenger side of the car and attacked Scarberry. Porcaro did this with their three children in the car watching and she did nothing to stop the attack. Galbraith has since been charged with battery. I will be seeking to have Porcaro charged also based on her inducing or facilitating Galbraith's attack.

Preceding one parenting time exchange Porcaro called the police and alleged that Scarberry was harassing her and violating the order. However, I was at the police station less than 10 minutes earlier when an officer called her, informed her that withholding the children was a criminal offense, that he was sending Scarberry to her place of employment and that when Scarberry arrived she was to send the children out.

Porcaro also contacts Scarberry and tries to engage him in conversation in violation of the Order for Protection. On Thursday 03 March 2011 she called Scarberry four times in short succession and was verbally abusive to him. Although Scarberry repeatedly terminated the calls, Porcaro was not doing anything in violation of the order.

Porcaro was apparently upset by some comments that were made about her. Those may have been what I posted the day before:

Desperate times call for desperate measures. Christine Porcaro, the poster-child for joint legal custody, is clearly desperate to get back to having the legal authority to return to the position where she can continue to abuse and neglect the children.

Well Christine [I know you read my blawg since you have already said you do] I say this to you, its very unfortunate that the pathology of your mental defectiveness is so extreme that you continue to litigate this case ad nauseum, expose your children to violence and, abuse and neglect them during your parenting time. Fortunately though there are people in the world who care for your children more than you do, without ever knowing them, and are working diligently to oppose your efforts at causing upheaval in the lives of your children and harm to them.

Yet, Porcaro's attorney's, Anthony Lawrence and Lanae Harden continue to condone and actually encourage this type of behaviour. Porcaro's continued harassment of Scarberry and her mental instability are setting her up to be the target of a legitimate protective order.

The second case involves a more technical legal issue with concurrent protective order and dissolution actions. In this case the sperm donor who abandoned the mother and child filed for emergency custody about two weeks after having no contact with mother or child.

The day before the hearing on custody the donor filed for an order of protection against the mother alleging domestic violence and stalking. The donor had the nerve to complain that the mother was repeatedly sending text messages to him and even asked him to bring diapers over for the baby. It's important to know that he had titled both of their vehicles in his name only and came to the apartment with the police to take the car she used. He ignored all of her requests. He even ignored my attempts to facilitate parenting time for him until he responded that he did not want me to contact him.

The order was served on the mother as she entered the courtroom for the emergency custody hearing. The donor's attorney, Pamela Buchanan, said she had nothing to do with her client filing that. This may be true as he was the one who had already been through the process after being convicted in relation to a DV incident with his former wife.

When the protective order came on for a hearing mother was prepared to refute the donor's claims. Buchanan galloped in on her high horse but was quickly dismounted by one of my big-guns attorneys. One of the problems for the donor was that he had told someone he got the order so he could get the mother to violate it, get her jailed and then get custody of the child he had abandoned.

As in the case with Porcaro he had also contacted the target and tried to engage in conversation which would violate the order.

What attorney Buchanan was missing is the understanding about the jurisdictional issues involved in protective orders. The purpose of the act is to facilitate the protection of an individual in a prompt and effective manner. Part and parcel to this is the independent action status and no filing fee which gets the matter before the court expediently.

Yet in this case there was already an underlying paternity action, the parties had already been served notice of a court date and, in fact, the custody hearing was set for the next day. The paternity court has jurisdiction to entertain petitions for orders that would serve the same purpose and effect as one filed under the Indiana Civil Protection Order Act. Thus, seeking a separate action for an order of protection was redundant and wasteful of the court's time and resource.

Buchannan, faced with this and the declaration from mother's attorney that she was welcome to proceed to hearing and be beaten, then agreed to dismiss the petition for protection in favour of an order from the paternity court restricting the parties from contacting each other for more than 10 minutes per day.

Civil Protection Orders have a legitimate and proper place but the abuse of them should not be tolerated by judges, practitioners or litigants themselves. These are just more examples to be added to my warchest of cases when I go before the Indiana General Assembly asking for changes to the Indiana Civil Protection Order Act.

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©2008, 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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