So the Indiana Court of Appeals hands down another decision on a pro se appeal, this time on 13 June 2011 where the trial court's denial of Father's petition to modify custody was affirmed. Unlike most pro se litigants this Father's appeal wasn't denied based purely upon a failure to comply with the Rules of Appellate Procedure. In fact, the trial court found Father was “completely cogent and prepared in court to show how poor the mother has done...”. However, Father's appeal was seriously deficient in numerous areas but the panel chose to decide the case on its merits.
Among some of the trial court's other findings were these about Mother.
“The mother’s mental health is poor as she has entered into a marriage after two weeks, stayed in a relationship that has been physically and verbally abusive due to alcohol issues with her new husband and she seemingly has no ability or will to make these issues better for her or her children.”
“That although the mother has stated she was pushing for the divorce that was filed by her current husband, the court was able to verify on its computer that the divorce has been dismissed.”
“The mother cannot seem to get past her relationship issues and seems only to focus on her well being and/or happiness...”
“...the court could find there are substantial changes thanks to mother’s complete inability to focus on the well being of the children rather than her well being...”
This has long been a concern of mine; where a mother puts her personal interest above that of a child. This is the primary reason that the most dangerous custody arrangement for children is sole custody with the mother. One of the things that bothered me most about my son's mother was her proclamation – “There can only be one person in your life that is the most important and that must be yourself.” She then went to live with one of her boyfriends and continued to treat our child as an inconvenience.
That attitude is what often leads to the abuse of children. It comes from both genders. As in this case the primary motivator for the mother is attachment to a man. It may have been financial, resulting from her insecurity or some other emotional issue. Here she chose someone who is violently abusive. In another case I knew of, a child was being sexually abused by the mother's live-in sexual partner. The mother refused to eject the abuser from the home even though she was aware of his sexual abuse of her daughter.
There are also the cases that we often see in the media where a man has violently assaulted a small child or infant, sometimes resulting in death, where the mother stood by and did nothing. Again, these men are people who see the child as an inconvenience. There is no biological connection between these men and the children so supporting those children is not conducive to the natural drive to reproduce, protect the offspring and see that they survive to reproduce. These men are naturally driven to mate with the woman and reproduce with her to pass along their genes. Supporting another man's children is in conflict with their biological mandate.
This is the basis for the divergence in attitude between my son's mother and I. I readily admit that when she said she did not want to have anymore children, although we had agreed to at least five, she was no longer the most important person in my life, my son was. It wasn't a conscious decision but I can look back and through applying what I have learned through my life see that this did happen.
My efforts were dedicated to my son not only because he was an infant and dependent upon me but because, in a purely biological sense, his mother could no longer assist in passing along my genes. I was left to be the person who was solely responsible for all the daily needs of our child; feeding, comfort, diaper changes, providing support and education.
Over time she became increasingly resentful of him for taking my attention and efforts away from her. Ultimately her psychological abuse of him turned physical including pointing a loaded gun at him and threatening to kill him. It was about a month later that she left and told me I am the one who wants him, I am the one who can keep him and take care of him.
Why then is it that women like this are able to obtain or retain custody of the children? In my case it was that she made a pay-off to Indiana Supreme Court Justice Steve David. In this case it was something different.
Here are some of the trial court's findings about the father.
“The court also found that the father in this case has convictions in his past as well and he is currently on the sex offender registry for the State of Indiana.”
“That upon further research on the computer during the hearing, the offenses were for Child Exploitation in both 2001 and 2002.”
“Clearly the father has mental and/or physical health issues as well.”
“...the father has committed atrocious acts against children in the past.”
The trial court did find that there had been a substantial change in circumstances but that modification of custody would not be in the best interest of the child. The Court of Appeals affirmed citing that since Father did not provide a transcript of the trial court trial then all the panel could rely upon was the findings. The panel then concluded that even though there had been a change the findings do not demonstrate that the trial court abused its discretion by finding that modification was not in the best interest of the child.
Had Father complied with the Rules of Appellate Procedure he may have had a different result. I have previously written about pro se appeals here.
I am often confronted by parents who bring to me evidence that there has been a substantial change in one or more of the eight factors so therefore they should be able to get a custody modification. This case clearly details why that is not so. I start by looking at the modification statute.
A trial court may not modify a child custody order unless (1) the modification is in the best interests of the child and (2) there is a substantial change in one or more of the factors a court may consider under Indiana Code § 31-17-2-8 when it originally determines custody. See In re Paternity of M.P.M.W., 908 N.E.2d 1205, 1208 (Ind. Ct. App. 2009).
In this case, the trial court found that although there was a substantial change in the factors in favor of Father, it was ultimately “not in the best interests of the child to modify custody.” Therefore, the statutory requirement had not been met. It is still left to that broad and undefined “best interests of the child” which is left to the discretion of the judge.
This case also gives rise to another statutory factor in child custody modification proceedings. I.C. § 31-17-2-21 states that “[T]he court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child[.]”
What this means is that you generally may not introduce evidence in a child custody modification proceeding that pre-dates the most recent proceeding. However, if it relates to the best interest of the child and one of the changed factors then it may be introduced. This is something that I have had to explain to lawyers who tell a client, “That was before the last hearing, we can't use it.”
Here is an example that I use. Father wants to modify custody. After their divorce mother neglected the children while living on her own. CPS substantiated the neglect. Now mother has divorced her second husband and is again living on her own. It could be reasonably predicted that as she is now living on her own and since she neglected the children last time she was on her own then she likely will again. Therefore, custody should be modified to Father.
Case law supports this contention. The paramount concern in consideration of child custody modification has always been the child’s best interests. See Joe v. Lebow, 670 N.E.2d 9, 21 (Ind. Ct. App. 1996) (quoting Pierce v. Pierce, 620 N.E.2d 726, 729 (Ind. Ct. App. 1993)). It is well within the discretion of the trial court to consider evidence entered in prior hearings in the same custody case when ruling on a motion to modify child custody and visitation. See Arms v. Arms, 803 N.E.2d 1201, 1209 (Ind. Ct. App. 2004) where it was stated that evidence from a prior hearing was just as relevant to instant hearing, as past behavior was a valid predictor of future conduct.
Here is where the case gets very interesting, moreso than it already has. Some of the trial court's findings including references to searches on the court's computer and that the court had done “research”.
“That although the mother has stated she was pushing for the divorce that was filed by her current husband, the court was able to verify on its computer that the divorce has been dismissed. As well, there are currently no contact orders between the mother and her husband thanks to pending criminal charges. The court also found on the computer that the mother’s current husband has been convicted of crimes before and, as stated above, faces charges currently for acts against the mother. The court also found that the father in this case has convictions in his past as well and he is currently on the sex offender registry for the State of Indiana. That upon further research on the computer during the hearing, the offenses were for Child Exploitation in both 2001 and 2002.”
The panel of the Indiana Court of Appeals reviewing this case did not miss the glaring admissions of the trial court's own investigation. There is a prohibition against a trial court conducting its own investigation and receiving ex parte evidence. That places the judge in the role of an advocate rather than an arbitrator and denies the parties of their right to engage in the evidentiary process.
The Code of Judicial Conduct, Rule 2.9(c) states that with regard to ex parte communications:
A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed. Commentary  to Rule 2.9 (c) clarifies that “[t]he prohibition against a judge investigating the facts in a matter extends to information available in all mediums.”
This case pleases me that I read every child custody decision as it provided the opportunity to share many lessons about child custody proceedings and the law in one neatly tied-together case. But it's not over with yet. This case also reveals something that is becoming more epidemic as the generational effect of the destruction of the American family is coming to fruition.
Sadly, the most unfortunate finding by the trial court was: “Quite honestly, neither parent in this matter seems fit to raise a child.”
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