Motion to Set Aside STAY in Scarberry Child Custody Case

The attorney for Christine Porcaro, Lanae Harden, has made an unusual request to the Indiana Court of Appeals. The case currently before the court involves an Anderson, Indiana father who lost his parental rights following a child custody modification hearing brought by Porcaro.

On 08 November 2010 Master Commissioner George Pancol and Judge Thomas Newman of the Madison County Superior Court ruled that Scarberry was unfit to parent his children because he "is agnostic". Scarberry filed a Notice of Appeal on 01 December 2010.

Porcaro contends that the judgment was founded upon other factors. She bases that upon the issues raised during the 20 hours of hearings. However, the Court did not recognize those issues as relevant and thus did not include them in the findings. My examination of the findings may be read here.

Upon reviewing the Order I felt that this case clearly justified the issuance of a Stay pending a ruling by the panel of the Court of Appeals. My basis for this was that it is policy of the State of Indiana to provide permanence and stability in custody matters related to children. Since it was likely that the lower court judgment would be reversed and the children returned to the previous Shared Parenting arrangement I felt that it was in the best interest of the children to return them to that immediately.

I wrote a brief on the matter and submitted it to Ken Falk, Executive Director of the American Civil Liberties Union of Indiana, for him to do with as he pleased. Falk is the lead counsel on the Scarberry Appeal.

Falk filed a Motion to Stay with the Court of Appeals. Porcaro did not object or file any response to that motion. The Court of Appeals granted the Stay on 11 February 2011. A Stay is an order that in effect says that the order being appealed in a way doesn't exist and the parties should proceed as though it was never issued.

A week later Scarberry was able to have parenting time with his children. Scarberry was also able to resume medical care for his children which Porcaro had effectively terminated. Their youngest child has Cerebral Palsy and requires regular medical care.

Porcaro, through her attorney Lanae Harden, has asked the Court of Appeals to set aside its Stay which will again give her the legal authority to terminate the children's medical care. This would make the third change in custody and parenting time in five months. The children would also be set up for another custody change in about 3-4 months when the ruling on the appeal is expected.

This is a highly unusual step but not surprising for an attorney with the limited knowledge of child custody and lack of moral foundation like Lanae Harden has. Harden is essentially arguing to the Court that, although I didn't bother to object before you issued a Stay, which you did so because you felt there was a high probability that Scarberry would win on appeal and you wanted to return the children to the previous custody agreement, I know don't like it that you did and want you to reverse that ruling. I base this on evidence not previously before you which I now want to submit to you because I don't like the decision you made. After this third custody change you can go back and change it again when you direct the trial court to vacate its judgment and issue new findings and conclusions, and judgment.

The submission of new evidence is generally limited to criminal appeals. Even then it is part of the briefing process and not in response to the issuance of a Stay to which one never filed an objection during the motion phase.

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.

Before personally impugning my character and motivation you should have done some research into my background. You would have then realized that you are facing someone who will not back down to a child abuser and that you have only increased my resolve in this matter.

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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.

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