Divorce does not absolve parents of responsibility

While counseling parents in high conflict relationships I am often confronted with the claims by a parent that he or she can't make the child do something the child doesn't want to. It is as though these parents now want me to believe that minor children of divorced parents are no longer the subjects of parental authority as are the children of married parents – something I just won't buy into.

This is often a very telling indication of what type of parent I am facing – an irrational one. This is precisely the reason the parents are in a high conflict relationship – one or both is irrational. To demonstrate the irrational philosophy about parenting the following colloquy usually occurs:
Me: So your children refuse to follow the parenting time order?
Parent: Yes, they just don't want to.
Me: Do you ever get tired of being their slave?
Parent: What do you mean?
Me: You know, taking them wherever they want, cleaning up after them, serving their every need since they have no assigned chores.
Parent: No they have responsibilities around the house.
Me: Well sure, when they are there I guess but aren't they out most nights?
Parent: No, they are at home every school night.
Me: School? Do they go?
Parent: Well yes.

This is when I get into some long diatribe about what a wonderful model parent I am speaking with and how I want this person to do “parenting seminars” with me so they can teach other parents how to raise a teenage child like theirs'. One who wants to do chores, who wants to be at home in the evenings doing homework, who wants to go to school and who wants to obey the commands and rules of this parent so much that it is no longer a rule but a desired way of life.

After this parent is done wiping the sarcasm from his or her face I usually get a natural response like, “Oh, I get it.” Quite simply getting divorced does not absolve a parent from a responsibility to ensure that the children are properly disciplined and respect the commands of the parent. It is rarely a problem in married households where the minor children get to decide which rules they will follow. Yet, in households led by some divorced parents the parent seems to behave as though the child is the one making the rules.

This may be the result of laziness, trying to win the affections and allegiance of the child or, as in the case I present today, an intentional effort to alienate the child from the other parent. Today's case comes from a recent unpublished opinion by the Indiana Court of Appeals.

The trial court found -

[Mother]'s testimony that she desires the [C]hildren to have a relationship with their father is not credible. [She] has interfered with parenting time and has consciously and subconsciously undermined the relationship between the [C]hildren and their father.
[Father] shall have regular email and phone contact with [K.N. and L.N].
[Mother] shall have no phone contact with [K.N. and L.N.] during the weekend parenting time in Indianapolis.
[K.N. and L.N.] shall have the right to earn one phone call per day with [Mother] during the full week parenting time based upon their behavior.
[Mother] shall impose consequences on [K.N. and L.N.] if they refuse to speak on the phone or email [Father].

Mother asserts that the trial court abused its discretion in modifying parenting time. Specifically, she argues that the trial court improperly ordered that 1) L.N. and K.N. shall earn the right to speak with Mother on the telephone; 2) Mother shall impose consequences on L.N. and K.N. for refusing to communicate with Father; and other unrelated issues. Mother also asserts that the trial court improperly found her in contempt.

Mother asserts that the trial court abused its discretion in ordering her to impose consequences upon L.N. and K.N. if they refuse to communicate with Father. She maintains that “[a]dministering consequences to a child for bad or inappropriate behavior is within the sole discretion of a party,” and the trial court's directive “is nothing more than a method for the court to punish the children for noncompliance with the court's order.”

The Court rejected Mother's argument citing the reasoning by the court in MacIntosh. There the court acknowledged that although a visitation order “necessarily direct[s] the conduct of the children affected by the marital dissolution,” the order is “not enforceable against the children” as the parents are the parties before the court. MacIntosh v. MacIntosh, 749 N.E.2d 626, 630 (Ind. Ct. App. 2001). Thus it is the duty of the parent to ensure that the children comply with the order.

The MacIntosh court went further in stating that a custodial parent may not “justify inaction simply because a child refuses to cooperate with a visitation order.” MacIntosh v. MacIntosh, 749 N.E.2d 626, 630 (Ind. Ct. App. 2001); Norris v. Pethe, 833 N.E.2d 1024, 1031 (Ind. Ct. App. 2005). The Indiana Parenting Time Guidelines state this clearly in that “each parent shall be responsible to ensure the child complies with the scheduled parenting time. In no event shall a child be allowed to make the decision on whether scheduled parenting time takes place.” IPTG § I(E)(3).

It has long been held that parents are responsible for the behaviour of their children which was recently affirmed in Norris – “our established case law . . . expects parents to control their minor child's behavior and attitude” Norris v. Pethe, 833 N.E.2d 1024, 1031 (Ind. Ct. App. 2005). Accordingly, the court in the immediate case found no abuse of discretion in ordering Mother to impose consequences for the failure to L.N. and K.N. to cooperate with the trial court's parenting time order.

Finally, Mother asserts that the trial court abused its discretion in finding her in contempt and therefore ordering her to pay Father's attorney's fees in the amount of $6,500.00 as a sanction. Mother contends that “there is no evidence to support the court's determination that [she] willfully disobeyed the court's orders regarding parenting time.” Rather, she maintains that the “[C]hildren have not abided by them.” This is a proposition that the court has soundly rejected.

The Court of Appeals in upholding the trial court found that the “evidence does support an award for attorney's fees and expenses incurred due to Mother's contempt. We therefore find no abuse of discretion in awarding $6,500.00 to compensate Father.”

In summary, Mother obstructed Father's parenting time with the children for months, called them repeatedly on the phone while with Father, maintained that it was not her responsibility to ensure that the children go to Father's for his parenting time with them and, generally, did not foster Father's relationship with the children.

Just as it is the responsibility of a married parent to ensure that his or her children comply with compulsory education laws, maintain their behaviour in manners generally acceptable by society and follows the laws, so is it for divorced parents. Divorced parents who decide that they will not enforce standards of behaviour upon their children, for whatever reason, are doing a disservice to the children.

Ultimately, failing to ensure that children participate in parenting time is contrary to the Indiana Parenting Time Guidelines and, likely, contemptuous of the court's orders.

If you need assistance with parenting time issues then please visit my website and contact my scheduler to make an appointment to meet with me.

If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.

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

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

The BIG PICTURE: Respect for Law and Texting while Driving in Indiana?

Never has something gotten so under my skin as the soon-to-be “effective” Indiana law prohibiting texting while driving. I have already written about the Safety in Texting While Driving where I detailed why it can be safe for some people to do that.

Today I want to throw all of that aside – disregard that this is a 'texting' issue – and focus solely on respect for the law.

The foundation of our representative democratic republic is respect for the rule of law which must be maintained if the Republic is to survive. Indiana, as all states, has a model Code of Judicial Conduct which establishes rules and guidelines for judges to follow.

The purpose of this is twofold, to ensure that litigants receive fair and impartial treatment from the court but also to instill and foster a sense of faith and trust in the judiciary by society at large. The courts are where we find ourselves in times of dispute amongst each other or when we have been accused of a trespass against society.

If we lose faith in the judiciary then there can be little incentive to use the judiciary to settle our disputes. In essence, judicial corruption effectuates anarchy. Similarly, as a country of laws, not men, we must have faith in our legislators also. Since the government derives its power from the people it is mandated that it obtain the consent of the governed before imposing obligations or restrictions upon the people.

Our Constitution provides that laws must be equally applicable and not single out particular people or classes of people for punishment or restriction without a compelling governmental interest – for the good of society. When laws become arbitrary and capricious we lose faith in the rule of law. Again in essence, oppressive or unjust laws effectuates anarchy.

This is where I find myself when confronted by this anti-texting while driving law. It is wholly unjust, oppressive and offensive to the very rule of law. Law should not be based upon a knee-jerk reaction, a fanciful whim or as a declaration to a particular interest group that “something is being done”. This is the reason that the framers of the Constitution have made it an extremely difficult challenge to amend the Constitution.

To better understand how this law is so unjust I will provide a hypothetical scenario with the same elements of the texting while driving issue.

At the entrance to roller coasters are signs indicating that riders must be at least 48” in height to ride. This is universal throughout all amusement parks. The purpose for this is to keep occupants from slipping out from under the lap bar.

Tragedy strikes three amusement parks one summer as a rider at each somehow comes out of the car and plummets to his or her death. Investigations occur at each and although much remains unknown someone discerns that the reports do show a similarity between all three riders – each was 61” in height.

Immediately there are calls for legislative action to ensure that these tragedies are not repeated the following season. Youths converge on the Statehouse and lobby for laws to make the rides more safe . Legislation is hastily crafted and introduced. Ultimately a bill is passed that provides these provisions; 1) That new measuring sticks must be mounted at the entrance to each ride with a red zone between 60.5” and 61.5” – riders in that height range will be banned from riding, 2) Those who violate this law shall be fined $500, and 3) That no law enforcement officer may require a suspected violator to be measured.

So now everyone can feel good. The class of people and the actions (61” in height) that led to these tragedies has been outlawed. I contend that it has not.

Instead I ask – If some 60.5” thru 61.5” riders slipped out from under the lap bar then why allow anyone under 60.5” to ride? I think society would be best served to look at the entirety of the situation in a logical manner and craft an effective law that will protect the populace.

Here is a continuation of the hypothetical based upon the principle of logic. Riders who are 61” likely fall into the category of adolescents – those thrill seekers who push the limits, test the boundaries and make us parents exclaim “What were you thinking?” I contend that the rides are safe for riders 48” in height and above but that some reckless youths did not follow the safety guidelines posted in the loading area.

I proposed that further investigation be done and then legislation crafted.

Upon reading the investigative reports and further interviews with witnesses it was determined that these riders who died had been playing a game wherein they raise the lap bar and try to use their strength to hold on. The smaller and younger riders do not try this and neither do the older, taller and wiser riders.

They had managed to hold the bar down in such a manner as to keep if from engaging the locking mechanism while fooling their less than attentive ride attendant from realizing this. I then crafted a law that contained these provisions; 1) That all roller coasters shall be fitted with lap bar devices that are electronically locked and may not be put into motion unless such device affirms that all bars are locked in the downward position, 2) That ride attendants receive training in properly securing ride occupants and observing unsafe behaviours, and 3) That state inspectors be allowed on the premises to inspect the rides at any time during operating hours to ensure compliance.

I hope that this illustration has provided you with enough information to see that one solution is a viable and effective means to ensure riders safety while the other is a ridiculous knee-jerk reaction made without proper consideration of the facts and not written in a way that can achieve the desired outcome. In short, that one of these responses you will find to be stupid and make you think these regulators have no clue and these safety measures aren't to be taken seriously.

This now brings us back to the substance of the texting while driving law.

Sending, receiving or reading a text on a mobile device while driving is prohibited. A law enforcement officer may not inspect the device to discern if any of that was happening.

However, the law does not prohibit the use of these devices for phone calls. Neither does is outlaw using these devices to access “apps”. For those not so technically savvy an “app” is short for application which on these devices may be a game, weather radar, restaurant guide, dictionary or just about anything that can be viewed and perused. This law simply targets one medium of a much wider problem – negligent and unskilled drivers allowing themselves to be distracted while driving.

For laws to be respectable there should be a logical connection between purpose, language and results. Here the purpose is to reduce injuries and deaths in automotive collisions for which distracted driving is a contributor. The language does not cover distracted driving but instead narrowly focuses on receiving, reading or writing text messages only. The law also fails to include any reasonable method of enforcement thereby making it superficial at best.

The result here is that we have legislators who caved into pressure to do something, abused the legislative purpose, passed a law that will have no effect, created distrust in the law-making process and authority, and ultimately may have endangered people. For that, I feel they have not respected the position that they embody nor the purpose for which the legislative process exists.

This law should be challenged at every attempt to enforce it. Ultimately it should be repealed and instead the focus should be on improving driver skills and holding those who fail to maintain due diligence while driving accountable for their actions.

What I find most dangerous about this law and the abuse of the legislative process is how and when it will be applied to our children. If a majority of our legislators and the governor can be so careless as to pass a law like this – with no logical basis – then what can they possibly do with the custody of our children? For it is this thought that comes forth from the anti-texting law and truly infuriates me.

If you need assistance with reasoning and developing logical cognitive abilities then please visit my website and contact my scheduler to make an appointment to meet with me.

If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.

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

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

A Fake Facebook Page in an Indiana Child Custody Battle

I have previously written about FaceBook in the context of overall social networking sites and about Social Networking sites making their way into the Courtroom. Now there is another twist to the FaceBook phenomena and child custody battles.

This time it was an Indiana woman who created a fake Facebook profile to get information from her ex-husband to use in a custody battle. Her unscrupulous act backfired on her when the father discerned the motivations of the person behind the fake profile.

The father, David Voelkert, was arrested by FBI agents on June 3 for allegedly installing a listening device in his wife’s vehicle. However, it turns out that it was just a ruse to expose the wife.

In late May 2011 the 29-year-old ex-wife, Angela Voelkert, using a fake Facebook page under the pseudonym “Jessica Studebaker” spied on her ex-husband through the site. Angela was purported to be a young girl who attended high school and worked at Subway when she contacted David. Even though Angela had a friend write the introductory message to David he still caught on as to what it was – an attempt by his wife to engage him in conversation and collect information for the custody battle.

David told “Studebaker” that he was planning to kill his wife and escape with his children and that he had installed a listening device in her car. David duly documented the ruse by having a letter notarized about a week before the messages were sent. He stated, “I am lying to this person to gain positive proof that it is indeed my ex-wife trying to again tamper in my life. In no way do I have plans to leave with my children or do any harm to Angela Dawn Voelkert or anyone else.” After FBI agents interviewed the bank worker who notarized the letter David Voelkert was released.

This is one of those types of incidents that will not gain one favour with a judge during a child custody proceeding. Indiana Code 31-17-2-8 does provide for the 8 factors that a court must consider in an initial child custody decision or modification. Of those is the mental health of the parents and a pattern of domestic violence which has been broadly defined to include stalking or cyber-stalking.

If you need assistance with your child custody case then please visit my website and contact my scheduler to make an appointment to meet with me.

If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.

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

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

Happy Father's Day to Fathers

Today is Father's Day. This day is a celebration of fathers inaugurated in the early twentieth century to complement Mother's Day in celebrating fatherhood and male parenting. Father's Day is celebrated on a variety of dates worldwide and typically involves gift-giving, special dinners to fathers, and family-oriented activities. The first observance of Father's Day actually took place in Fairmont, West Virginia on July 5, 1908. It was organized by Mrs. Grace Golden Clayton, who wanted to celebrate the lives of the 210 fathers who had been lost in the Monongah Mining disaster several months earlier in Monongah, West Virginia, on December 6, 1907. It is possible that Clayton was influenced by the first celebration of Mother's Day that same year, just a few miles away. Credit for Father's Day went to Sonora Dodd from Spokane, who invented independently her own celebration of Father's Day just two years later, also influenced by Jarvis' Mother's Day. Clayton's celebration was forgotten until 1972, when one of the attendants to the celebration saw Nixon's proclamation of Father's Day, and worked to recover its legacy.

Just as I said about Mother's Day I believe Father's day has been trivialized and can be added to the ever growing list of commercial events rather than a day set aside to reflect upon the contributions of the people or person it was intended to honour. I still wonder each year what attaching stickers of the characters of the latest popular animated children's program to coloured eggs has to do with Jesus. Unlike Mother's Day though, I don't think the commercialization has grown in an attempt to include every male who has reached adulthood.

In my posting on Mother's Day I did not hold back on chastising those women whom I believe pretend to be mothers but, in fact, are little more than gestational hosts who ferry their children off to other care providers shortly after birth. Well, fathers owe no less of a duty to their children than mothers do. Unlike mothers in general though I do believe that fathers are making progress towards being more involved with their children.

I see anecdotal evidence of this everywhere. Sporting events have always appeared to be the father's domain but the term “soccer mom” was coined from the role that mothers played in hustling groups of children from one event to the next. Now I see more girls being brought to their games and practices by fathers alone than I do mothers alone.

More important though is what I see elsewhere. Fathers pushing a baby stroller, one sitting on a wall somewhere just chatting with his child, playing with their children at the park, attending school functions or shopping for new clothing with them. In short, these are men who are taking an active role in providing the care for their children and the monumentally important task of demonstrating the role of a father.

Unfortunately for many children though they don't have the involvement of their fathers. The Indianapolis Star reported yesterday that Fathers' absence takes heavy toll on children which provided a sobering account of some of the effects. According to the U.S. Census Bureau, 24 million American children -- one in three -- live without their fathers at home.

Often times this is the result of a divorce wherein judges, attorneys, mothers and – even at times – fathers do not believe that children need to be in the care and custody of anyone but their mothers. However, progress is being made in that arena. Where there is a decline though is in fathers who take responsibility for their actions and children particularly from the time of conception. The epidemic and consequences of children born out-of-wedlock continues to grow.

This is the fault of both mothers and fathers. I place no blame on one more than the other though. Part of being a responsible father is to provide a stable and nurturing environment in which to raise a child. First and foremost in this is marriage. It also includes financial stability – having a job, home, significant assets – to provide for the needs of the child. Men who cannot do this are not fitting of being fathers. There is much more to being a father than inseminating a woman. It may be a biological prerogative to go forth and multiply but children need both parents to be ensured of successful maturation and to do what we ultimately exist to do – pass along our genetic material.

For those people who stand in the way of allowing children to have what they need most in life which is the care, companionship and support of two loving parents – shame on you.

For those men who completed the task of being a chromosome delivery portal and nothing more – shame on you also. It is time to step-up and be a real man and do what real men do and what this day is set aside to honour – be a father to the children you produced.

For those men who are providing the caring, supportive, stable and nurturing environment that children need or have done that already – Happy Father's Day.

If you need assistance with parenting issues or a child custody matter please visit my website and contact my scheduler. to make an appointment to meet with me.

If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.

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

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

Last night's Home Invasion, Child Abduction, Domestic Violence attack, Arrest and me

Last night I got summoned by a woman wanting help in a Domestic Violence situation. I wrote about another incident where I was recently called to come assist in a similar situation which I wrote about in So I get called to a Domestic Violence situation.

Last night I came upon the scene to find two neighbors in the yard, an unidentified man and the mother. She is screaming, “He's got my baby, he's got my baby. I just want my baby back!” Immediately inside the house are two men in a battle on the floor. Another neighbor is in the living room holding the baby.

I go in an order the men apart and get the attacker off of the father. The attacker then flees the house. The neighbor puts the baby in the crib and the father heads outside after the attacker who flees with the unidentified man down the road. A neighbor and I ensure that Father doesn't go after the attackers. We go inside to check on the baby but Mother had taken the child.

Father calls the police. An officer, who has previously responded to that residence, arrives while I am still on the phone with the dispatcher. He takes information from Father and the rest of us on scene. Father then goes with the officer.

About an hour later Father is home with his child, the Mother is in jail after being arrested for home invasion and domestic battery, and the police are looking for the other two perpetrators.

These two recent Domestic Violence situations both have something in common besides the woman seeking assistance. The woman was the aggressor or attacker in these incidents. In the case last night Mother was arrested. In the other incident I did not report it to the police.

What is alarming here is that these woman, the criminals, are the ones seeking assistance. They are the ones who feel so emboldened by policies and society's false perception of who a Domestic Violence perpetrator is that they feel that they may commit these crimes without repercussion. There is good reason for them to feel that they won't be held accountable.

Some of what I came to learn about this latest situation from one of the neighbors was that Mother had stabbed Father about three months ago. Father refused the neighbor's request to call the police then. Mother has a Protective Order against Father. Mother brook into Father's home while he was away. Mother had been violent against Father on numerous occasions during the time they still lived together but Father never called the police.

What I got to witness last night was apparently the phantom illusion of a female committing an act of Domestic Violence against a male. Organizations like the female only Indiana Coalition Against Domestic Violence or the Julian Center profit from the common misconception that women do not commit acts of Domestic Violence. However, RADAR provides us with the truth about Domestic Violence.

That truth is what I often witness; that women commit egregious acts of violence against fathers whom with they are in a relationship. The situation last night could very likely have been avoided if Father had done what all men in these situations should do. That is, the first time that a woman becomes violent have witnesses or record the incident and then call the police.

The statistics will continue to support the myth so long as men fail to take the proper action and have these mother's arrested and charged for the crimes they are committing.

Too often men are focused on not wanting to incite the woman further or have been verbally beaten into submission thinking that they could not provide suitable care for the children while the mother is in jail. Men carry their own inhibitions, denying that these women are criminals who are unlawfully attacking them and creating a dangerous environment for the children. Instead they wrongly believe that they did something to upset her and cause this. Further, many believe as it is their responsibility as “man of the house” to maintain order and handle these issues on their own.

It is not something that a man should handle on his own. To be proper men and fathers these victims need to seek outside assistance to help remedy the violence perpetrated against them and in their household. When these women attack it is not about trying to control the man or out of anger against him but, rather, it is commonly an effort to maintain control over the children.

That is what the focus must be on: the children. Any man who would not support a stranger coming into his home, attacking him and endangering the child should not provide an exemption to someone just because she happened to have been the host for the developing fetus before birth.

If you need assistance with a child custody matter involving Domestic Violence then please see my website and contact my scheduler to make an appointment to meet with me.

If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.

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

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

How to lose parenting time – Have an attorney that doesn't know Indiana child custody law

I tend to view myself as being quite knowledgeable about child custody law in Indiana. I attend all the meetings of the Domestic Relations Committee of the Indiana Judicial Center and I also write child custody law. Additionally, I read all of the higher court opinions as they relate to child custody law where I often see the same results; attorneys not being intimately familiar with child custody law.

Two days ago the Indiana Court of Appeals handed down another opinion where apparently an attorney had been deficient in his or her obligation to ensure that the client was well-advised about the child custody statutes and the Indiana Parenting Time Guidelines.

In this case Father's parenting time was described to the appellate court as: “overnight parenting time every other weekend, over some holidays, and for two weeks during the summer.” The opinion included a footnote about that schedule which read: “Father testified that until just prior to the hearing in this case, he was unaware of his right under the Parenting Time Guidelines to have the children for approximately half of the summer, and that if his counsel in the dissolution had advised him of such, he would have taken that extended parenting time.”

Here, Father and the children could have spent more time with each other but, according to Father, his attorney failed to inform him that he was entitled to a minimum of half the Summer with his children instead of two weeks. Apparently the trial court made no findings as to why Father received less than the IPTG minimums. From what I could glean from the appellate ruling it appears that it was an agreed entry.

The IPTG at Section II(B)(3) provide that extended parenting time for children age 5 and older is:
“One-half of the summer vacation. The time may be either consecutive or split
into two (2) segments. The noncustodial parent shall give notice to the
custodial parent of the selection by April 1 of each year. If such notice is not
given, the custodial parent shall make the selection.”

A few questions come to mind my mind about this situation –

What would a parent pay to get three additional weeks per year with his or her child?

How did this father find this attorney?

What were the attorney's qualifications to take on a child custody case?

What amount of money did this father pay to that attorney to get less than what the IPTG suggest as a minimum to maintain a suitable relationship with his child?

What is the potential psychological impact that this could have had on the child?

What is the prospect of this father getting half the Summer break with his child in the future?

I can't answer the first four questions but if you are in a similar situation then you certainly can. As for the last question I do have the answer for that.

Very unlikely. The reason for that is because it is the policy of the State of Indiana to bring child custody proceedings to a conclusion and maintain consistency for the child. “This doctrine is reinforced by the concern for finality in custody matters.” See Baxendale v. Raich, 878 N.E.2d 1252, 1258 (Ind. 2008).

Thus, a parent seeking to modify a child custody order has a significant burden to overcome. That parent must show a substantial change in at least one of the factors that a court must consider under I.C. 31-17-2-8 and that the modification is in the best interest of the child. Here that just isn't likely to be the case. It is a long-held standard that a party is responsible for the oversights of his or her attorney.

So, onto the point I intend to make. It is extremely important that you start a child custody proceeding being as prepared as possible. That means being organizationally equipped, having knowledgeable counsel inclusive of an attorney if you are going to use one, knowing the pitfalls and being the best parent you can be.

If you need assistance with a child custody case, including finding and interviewing an attorney to ensure that you receive adequate representation, then please visit my website and contact my scheduler to make an appointment to meet with me.

If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.

Subscribe to this blawg.

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

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

A mother who refuses to do what is best for her child, modification of custody denied and judicial misconduct

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 [6] 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.”


If you need assistance with your Indiana child custody case then please visit my website and contact my scheduler. to make an appointment to meet with me.

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

An effective weight loss plan

As I am nearing the weight that I was on the 21st anniversary of my birth I take a moment to reflect upon weight loss in general, what it has taken to get there and the benefits that I have received. I expect, rather I demand of myself, that I will lose the three pounds necessary to achieve the interim goal of my age 21 weight by the end of June. After that, the final goal is my high school graduation weight of 129 when I was age 17.

That was not my initial goal though. At age 19 I was a professional athlete who got struck by a vehicle and nearly killed. It wasn't until four years ago, at age 38, that I was able to begin athletics again. It took that many years for my body to restore itself to a usable level, for the pain to become manageable and to be able to walk without periodically stumbling or falling. The pain resulting from major nerve damage, which had been so severe the first year that contact with the surface of my skin such as wearing a sock had the same feeling as being burnt by fire, gradually subsided. By my mid-30's pain was no longer chronic. I began having pain-free periods after being well-rested, sometimes lasting until noon or occasionally later.

At my highest point, which not surprisingly was during my divorce and while getting an upper body workout from masonry and roofing work, I weighed 196 pounds. Typically, following my mid 20's, my weight had fluctuated between 165-185 pounds, often with the seasons. It seems that the Thanksgiving, Christmas and New Year's food eating frenzies, which occurred during a time of reduced outdoor activity, was not conducive to maintaining my weight.

On 12 December 2009 I decided I was going to start running competitively. That day I was 178 pounds. My goal then seemed easily attainable – a waist size the same as my hips – which I estimated would put me at a weight of about 155 pounds.

Rolling my ankle, resulting in a triple sprain, in February didn't help this mission. But through proper diet, walking and pure determination I had reached that goal by Spring.

Still dissatisfied with my body image I pursued further weight loss. Additionally, the proper balance of weight to provide the muscle mass to carry myself, yet minimize the load I had to carry, had not been reached. I kept setting and achieving incremental goals. Three pounds, seven pounds or one pant size smaller.

The process was as much psychological as it was physical. I relied upon the instruction I had received at the United States Olympic Training Center in Colorado Springs, Colorado when I was age 17 and also upon research I had conducted at the current time using the internet and health and nutrition books that I have.

While researching I came across every fad diet, hypnosis, medical procedure, device, exercise machine and all other possibly conceivable methods by which one could be persuaded to part with their money in the pursuit of weight lose. All of which do not produce the desired results. One claim that I would find reminded me of some late night infomercial about cleansing the body of toxins and the digestive tract of years of “built up sludge” lining the intestinal walls. The claim was that an adult can never return to their teenage weight because of maturation stages where bulk is added but more importantly because of this weighty mass of “built up sludge”.

To me it simply sounded like nonsense. None of the other diets or various other “secrets” to weight loss made sense either. In making a logical examination, as I do with everything, I asked myself – if any of these weight loss methods actually produced the desired results then why would there be new methods? The simple answer is – they don't! They only exist to separate people from their money not fat from their bodies.

I couldn't help myself from obsessing about that claim I had heard that a person cannot naturally return to their normal teenage weight. This concept is borne by common folklore as well as weight charts which differentiate based upon age. People kept telling me that it's just not biologically possible. To me it all sounded like a myth just as the “you must drink at least 64 ounces of water per day” myth is so commonly accepted, promoted and repeated, even by so-called knowledgeable medical professionals.

Inclusive of all the walking, running and bicycle riding that I do each day, while 90+ degrees lately, I have not consumed 64 ounces or more of water or any other beverage each day. But I have ensured that I stay properly hydrated. That 64 ounce myth may sound catchy just like a fad diet but what they have in common is what keeps people on a diet treadmill -- neither is based upon sound scientific evidence.

It is important that everyone maintain a healthy lifestyle of which part of that is a healthy weight. If you are involved in a child custody case then it can have added importance. By law a parent's health is one of the eight factors that a court must consider when making a child custody decision. A healthy lifestyle and a healthy weight can both be achieved regardless of what justifications some people may provide for their failure to do so.

My weight loss has certainly allowed me to be more competitive but it has done much more for me. All of my vital signs have improved. My resting pulse is generally around 45 now. I eat less, usually around 1200-1500 calories per day which is inclusive of my daily 5-10 miles of running and walking. More important, I generally feel more rested, alert and energetic.

The level of stress placed on my body has been reduced which has a corresponding effect on mental stress. The reduced caloric intake will lower my immune response and increase my longevity. As my son places higher demands on my time and energy level I am able to keep up. That is the most important thing to me.

So, I say now and assure you that I will attain that impossible weight of 129 pounds that carried this 5' 10” body across the finish line in 100+ races per year 25 years ago.

If you need assistance with your health issues or weight loss then please visit my website and contact my scheduler. to make an appointment to meet with me.

If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.

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

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

Justice Steve David can't follow simple Indiana law

If you pay attention to political or legal news then you should be familiar with the decision by Justice Steve David striking down an Indiana law that allows for citizens to use force to resist an unlawful entry into their domicile. The decision by the Indiana Supreme Court in Barnes v State of Indiana was handed down on 12 May 2011.

After getting additional information about the case and speaking with some civil rights attorney's I wrote briefly about that case and Justice David in “I tried to warn”. In that posting I specifically stated that I have had significant experience in the Boone Circuit Court and with Justice David in particular while he sat in that court.

Early on I was dismayed to hear that people, especially legal analysts, were stunned by the decision in Barnes and David's judicial activism. To me though it was business as usual for Steve David. As a bully from the bench he often intimidated litigants and went against long established legal principles. Lawyers refused to make a challenge knowing that their future clients would suffer equally by David's arbitrary and unlawful actions.

I took a stand, however, and Judge David took the path of avoidance. Never did he face my claim that I would reveal corruption by him and the Boone County Prosecutor Todd Meyer.

Last week while I was catching up on my reading of the higher court opinions in child custody cases I came across an attorney fee issue in a divorce. There were no children involved but it still caught my attention because Justice David had heard the case. So I read on.

Charles R. Bilyeu appealed the trial court’s order that he pay the attorney’s fees of Frani Bilyeu upon the dissolution of their marriage. Charles raised a single issue for review, namely, whether the trial court erred when it ordered him to pay Frani’s attorney’s fees. The panel reversed and remanded with instructions.

On April 8, 2005, Charles and Frani executed a premarital agreement that provided, among other things, that neither shall “demand, claim, take or receive from the other party attorney’s fees or other litigation expenses to which he or she might otherwise be entitled by reason of any rights arising out of the marriage and the relationship of the parties.” The next day, they were married. Charles filed a petition for dissolution of the marriage on July 28, 2008.

On June 16, 2009, Charles filed a motion to determine the validity and enforceability of the parties’ premarital agreement. The court held an evidentiary hearing on that motion on August 19. On September 21, 2009, Judge David entered an order on Charle’s motion, expressly concluding that the premarital agreement “is valid and enforceable.” Essentially Judge David determined and entered an order that recognized that the parties' had voluntarily entered into the pre-marital agreement and that it was an enforceable contract pursuant to Indiana Law.

On March 11, 2010, the trial court entered its dissolution decree, with findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52. In the decree the court again acknowledged that the original premarital agreement was “valid and enforceable.” But the court also concluded that Charles “has far superior earnings and earnings potential” over Frani and shall pay a portion of Frani's “attorney fees in the amount of $5,500 . . . .”

Charles filed a motion to correct error, which the trial court denied. A motion to correct error is basically an appeal to the judge. A party details the basis for his or her belief as to why the judge made an error, what the underlying facts and law are and why the judge's decision was an error based upon the facts and the law.

In this instance Charles argued that he and Frani had entered into a contract concerning attorney fees, among other things, the day before they wed. Judge David had recognized that their agreement was lawful and binding and he was therefore barred from making any decision contrary to that agreement. Contrary to their agreement though Judge David decided that Charles would have to pay $5,500 of Frani's attorney fees to Thomas A Whitsitt.

This was contrary to established case law and was fundamental error. Fundamental errors are those which are clear on their face and need no interpretation. It would be the equivalent of saying that even though you had a green light and the intersection was clear when you entered it the guy who had a red light and t-boned your car was not at fault because you didn't have the right-of-way. Judge David should have corrected the final decree of dissolution of marriage in this case and eliminated the portion of the order where Charles was to pay $5,500 of Frani's attorney fees since Charles and Frani neither wanted the other to be responsible for the attorney fees of the other. Judge David didn't admit his error, something he never does, so Charles had to appeal.

The primary and overriding purpose of contract law is to ascertain and give effect to the intentions of the parties. If the intention of the parties can be gleaned from their written expression, that intention must be effectuated by the court. In determining the parties’ intent, all of the contractual provisions must be read as a whole. See Gillette v. Gillette, 835 N.E.2d 556, 561-62 (Ind. Ct. App. 2005).

Again, in his appeal Charles asserted that the trial court erroneously ordered him to pay Frani’s attorney’s fees. The panel of the Indiana Court of Appeals agreed stating, “Under the plain terms of their premarital agreement, Husband and Wife must pay their own attorney’s fees.”

In the March 11, 2010 decree of dissolution of marriage, at paragraph three, Judge David referenced the September 2009 order that found the premarital agreement to be “valid and enforceable” and again restated that. Nonetheless, in paragraph 41, David ordered Charles to pay $5,500 of Frani’s attorney’s fees. The panel found, “That order is contrary to the terms of the premarital agreement, which the court reaffirmed in paragraph 3 of the same decree to be “valid and enforceable.”” This was not a simple mistake on Judge David's part. Judge David was specifically told that paragraph 41 was contrary to the parties' agreement as he had stipulated in paragraph three of the same document was valid and enforceable. Judge David simply ignored the wishes of the parties and Indiana contract law and decided to make his own law instead; specifically that if one party has greater financial resources or potential then he pays.

It was this concept of potential that Judge David has often used when making decisions which are contrary to law. In child support payment cases judges are allowed to make orders contemplating the potential income a parent could earn if that parent is currently unemployed or underemployed and had a history of employment during the marriage. See Indiana Child Support Guidelines [ICSG] at Section 3(A). However, “the guidelines are not meant to force persons to change careers or work up to their full economic potential.” See Matter of Paternity of Buehler (1991), Ind. App., 576 N.E.2d 1354.

Yet, one of the things Judge David liked to do was say that a parent who may have been a stay-at-home parent had the potential to earn substantial income by entering the workforce if he took custody of the child from that parent. That is clearly against established law and the ICSG which state a parent cannot be forced to into the workforce just to maximize child support payment obligations.

Another thing Judge David would do in denying or restricting parenting time is say that a parent had the potential to abuse, neglect or harm the child. He would make this basis upon his own arbitrary standard. Indiana Code 31-17-4-2 states, “The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent's parenting time rights unless the court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development.” [1997]

However, parenting time may not be denied or restricted unless the court finds that “the visitation might endanger the child’s physical health or significantly impair the child’s emotional development.” See Lasater v. Lasater, 809 N.E.2d 380, 400-401 (Ind. Ct. App. 2004). Even though the statute uses the term “might,” the year following passage of the law the appeals court interpreted the language to mean that a court may not restrict visitation unless that visitation would endanger the child’s physical health or emotional development. See Stewart v. Stewart, 521 N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988), reh’g denied, trans. denied. This is why it is important to know case law as I do.

Judge David has long experienced this God complex where he decides, based upon his own experiences, wishes or assumptions what would be best for litigants or society in general regardless of the law, wishes of the parties or what is actually best for those affected by his decisions. Just as in this immediate attorney fees case he did the same thing in the Fourth Amendment case of Barnes v State where he declared void an Indiana statute giving citizens the right to resist an unlawful entry into their homes.

Here, the Indiana Court of Appeals was rather clear about David's judicial activism – “Accordingly, we conclude that the trial court erred as a matter of law when it ordered Husband to pay $5,500 of Wife’s attorney’s fees. That part of the court’s order is contrary to the plain and unambiguous language of the parties’ premarital agreement and contrary to the court’s own unequivocal determination that the agreement is “valid and enforceable.”” [emphasis added]

Reversed and remanded with instructions.
Justices BAKER, and SHARPNACK, Sr., concur with Justice NAJAM

Still, there are people out there who hold a strange allegiance to Justice David and feel that he does no wrong. For those of us who respect the law and hold such documents as the Bill of Rights or the Indiana Constitution sacred and who value our personal liberties – we will be voting NO on the Justice David retention question on the November 2012 ballot.


If you need assistance with selecting an attorney or getting information about a judge please contact my scheduler. to make an appointment to meet with me.

If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.

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

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

How to Lose an Appeal - Indiana Appellate Procedure

As part of my regular routine I read all of the Domestic Relations and child custody cases handed down by the Indiana Court of Appeals and the Indiana Supreme Court. I consistently come across decisions like the one I am examining today. This time it is a pro se litigant who's appeal was doomed from the outset by failure to comply with one of the simplest rules. I have previously written about similar appeals in Pro-se Litigant Child Custody Appeals where I examined appeals by pro se litigants and also some disastrous appeals by attorneys.

In this appeal, Joseph N Wright represented himself arguing the the trial court had abused its discretion by not modifying his child support payment obligation. Wright had been ordered to pay $177.06 per week based upon an imputed income of $50,000.

Modification of a child support order is governed by Indiana Code section 31-16-8-1 (2010), which provides that child support orders generally may only be modified upon a showing of (1) changed circumstances so substantial and continuing as to make the terms unreasonable; or (2) that a party has been ordered to pay an amount in child support differing by more than twenty percent from the amount which would have been ordered pursuant to the child support guidelines.

The trial court found that Wright had not proved his case. The party seeking to modify a child support order bears the burden of establishing that the requirements of section 31-16-8-1 have been met. See Saalfrank v. Saalfrank, 899 N.E.2d 671, 675 (Ind. Ct. App. 2008).

Ultimately the panel of the appeals court found that Wright had not met his burden to show that the trial court had abused its discretion. The panel noted that the trial court observed his “nice jewelry” and “nice clothes,” and stated, “I do not see any change in your income or circumstances in this case.”

I disagree with Magistrate Nanette K. Raduenz and Judge Elizabeth F. Tavitas that “nice jewelry” and “nice clothes” should have an impact on establishing a child support payment amount or the modification of a child support order. I was recently given a suit that belonged to the late Henry Karlson, famed Indiana University law professor and civil rights attorney. It clearly falls into the category of "nice clothes" yet in no way does it change my paltry level of income.

Setting the substance of the case aside I move to a fundamental error made by Wright and quite a few others. The Court of Appeals noted as follows:
"As a preliminary matter, Wright has failed to supply this court with a copy of the transcript from the hearing or with citations to relevant parts of the record relied upon as required by Indiana Appellate Rule 46(A)(8)(a). Without a complete record and corresponding citations thereto, Wright’s claims are waived."

I do not know where Wright obtained his information on how to write and appeal but he missed one of the most basic rules which does not apply under only a very limited set of circumstances. The panel needs to see the trial court record!!! For some reason they just don't take a litigant's word that what is claimed was actually done or said in court.

Having a record to examine is essential to deciding an appeal. Following the rules is also essential. Appellate work is laborious, requires strict adherence to the rules and must be done using a mindset prepared to make logical argument.

The higher courts have consistently held that pro se litigants will be held to the same standard as trained attorneys. Appeals are something that should not be done alone. Even some attorneys use an assistant when doing appeals.

If you need assistance learning how to write an appeal or selecting an attorney to do an appeal for you or provide assistance to you as you write it then please contact my scheduler. to make an appointment to meet with me.

If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.

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

Why Students should NOT place primary importance on Academic Achievement

Sci-fi movie fans and others may be able to recall Keanu Reeves plugging-in and learning martial arts or how to fly a helicopter in the movie The Matrix. Such a learning system would alleviate nearly every problem we have in our modern institutional education system and provide children with much greater opportunities for sports, general play, leisure time and a less stressful life. But such is not reality. So, instead, it is best that we strike a tenable balance between those.

In May I participated in the 500 Festival Mini-Marathon in Indianapolis. Later that month was a marathon mediation session in a very high conflict relationship where the parents have easily spent combined attorney fees in excess of $200,000. For the first time these parents were now engaged in meaningful dialogue and coming to agreement on what is best for their son.

The parties' child, an intelligent and academically successful young man, is now failing in school after last year being an honor roll student. I observed these embattled parents come to realize that they are causing the harm to their child. I offered suggestions about how they can see each other in a new perspective and how each of them had wishes contrary to what is best for their child.

Just when I think we are going to make it through every issue with some give and take the mother unloads the bombshell on me: the child cannot participate in any sports until he maintains a "B" average. When I said failing I meant failing. He must pass a course in Summer School just to stay at grade level.

Immediately I and her attorney both strongly objected to her ultimatum. My basis for my objection was that necessary balance that I had mentioned. Her attorney had also referred to the positive outcomes of organized school sports programs. Mother conceded that some type of sports should be allowed pending a return to the normal academic successes her child had enjoyed but nothing that would be a priority to his classroom performance. Still she protested that she didn't understand why athletics should be allowed when their son has more important things to concentrate on like academics and getting counseling for his mood and behaviour issies.

So, I have been prompted to delve further into what I instinctively know and to coherently provide the basis for my conclusion; that the focus on academic achievement is to the detriment of children.

There are a number of health–related factors that can contribute to a student’s academic performance, and therefore have an effect on his or her GPA. The amount of exercise, nutritional routines, and also the amount of social support the student perceives all can contribute to how a student academically performs (Hammer et al, 1998). Although I do not make the specific comparison here I do contend that institutional education is now based more on mastery of standardized achievement measures than learning, which is to the detriment of our children specifically and society as a whole.

So, what is the ultimate importance?

If you have seen the movie Mr Woodcock staring Billy Bob Thornton then you are familiar with this opening monologue to his primary school gym class.
"To survive outside these walls you need more than just math and science. The world does not stop for people who can spell fancy words or tell you the capital of Montana. The only thing that matters in this world, ladies, is strength. Strength of body and strength of mind. Now if you're not strong enough by the time you leave these doors you may as well give up and go home to your mommas."

I have spent some time around Riley's Hospital for Children, I have known doctors who worked there and also the children and their parents. The wishes I heard from these people were in stark contrast to those seeking an academic path to the top.

While the parents who attempt to live vicariously through their children have made it their mission to be the project manager of their child's ascent to the most prestigious academic institutions others seem to have a different calling. I have never heard the parent of a child who is suffering through an illness exclaim that they wish there child was more educated.

In fact, I can extend this to well beyond people of the typical institutional educational period. Neither have I heard the adults who are well educated but suffering the ill-effects of a lifestyle that did not value physical health say such a thing as -- at least I have my knowledge. In fact, the saying, "At least I have my health" is about as common as houseflies when disaster strikes while "At least I have my knowledge" is not part of our common vernacular.

I will stop short of calling one class of parents better than the other for my aim here is not to create a divide among parents, but rather, to offer a perspective on what is best for children that differs from that perpetuated by those who most profit from the classical viewpoint.

Ultimately, I believe that the impediments to academic achievement are the very things that lead to academic achievement and overall success in life, or rather -- living. However, when properly prioritized and balanced there is no reason why students cannot maintain positive whole health, learning and academic achievement.

Exercise
In a study in 2000 Trockel, Barnes, and Egget found “That students who exercised seven or more hours a week obtained significantly lower grades than students who exercised six or fewer hours weekly or not at all ”. Other studies have found the opposite to be true which leads to confusion for parents and policy makers. It is then necessary to determine if the relationship between exercise and lower academic achievement in some students is a correlation or causation effect.

"We now have evidence to support the claim that exercise is related to positive mental health as indicated by relief in symptoms of depression and anxiety." - The Influence of Exercise on Mental Health by Dr. Daniel M. Landers, Arizona State University. There is also the more cautious “physical activity appears to relieve symptoms of depression and anxiety and improve mood” - Surgeon General’s Report on Physical Activity and Health (PCPFS Research Digest, 1996).

Depression is a prevalent problem in today’s society. Clinical depression affects 2–5% of Americans each year (Kessler et al., 1994). Exercise has been proposed as an alternative or adjunct to more traditional approaches for treating depression (Hales & Travis, 1987; Martinsen, 1987, 1990). Across five meta-analytic reviews, the results consistently show that both acute and chronic exercise are related to a significant reduction in depression. The findings indicate that the antidepressant effect of exercise begins as early as the first session of exercise and persists beyond the end of the exercise program (Craft, 1997; North et al., 1990). These effects are also consistent across age, gender, exercise group size, and type of depression inventory.

Exercise may be a positive adjunct for the treatment of depression since exercise provides additional health benefits (e.g., increase in muscle tone and decreased incidence of heart disease and obesity) that behavioral interventions do not.

The psychological benefit of exercise, especially the release of Dopamine during aerobic workouts, may become an overwhelming drive for an already depressed student who may then become susceptible to compulsive workouts. This may account for the lower academic success rate of some students who report engaging in more exercise.

Additionally, students who have lower academic success and also exercise a significant amount of time each week may be those who are not academically proficient and therefore seek out an alternative source of satisfaction for success. Others may have started an exercise routine without compensating for other time demands such as employment. It cannot be concluded that exercise and a corresponding lack of academic achievement is a causal relationship.

Keeping in mind that learning is life-long it is best for one to be positioned well to facilitate the induction of information and retention of that knowledge. While not all students are depressed and therefore in need of placing a premium on exercise over pressures to achieve academically there is still a need for regular physical exercise by everyone.

Stress
Stress is the emotional and physical strain caused by our response to pressure from the outside world. Common stress reactions include tension, irritability, inability to concentrate, and a variety of physical symptoms that include headache and a fast heartbeat. In short, stress is a killer.

The great neurologist Walter Cannon coined the term homeostasis to further define the dynamic equilibrium between stress that builds or protects the person and stress that tears the person down. Through his experiments, he demonstrated the"fight or flight" response that man and other animals share when threatened. Further, Cannon traced these reactions to the release of powerful neurotransmitters, epinephrine (also called adrenaline) and norepinephrine (noradrenaline), in the response to stress. The release of these neurotransmitters leads to the physiologic effects seen in the fight or flight response, for example, a rapid heart rate, increased alertness, etc.

First among the causes of stress on students is academic pressure. A study by Diane S. Kaplan, Ruth X. Liu and Howard B. Kaplan [School related stress in early adolescence and academic performance three years later: the conditional influence of self expectations] found that early adolescent school-related stress, both independently and in interaction with high academic expectations, negatively affected academic performance 3 years later. These results suggest that for students in high stress school environments, an increase in academic expectations may serve to increase their school-related stress and impede their academic performance.

Students at either the secondary or post-secondary level of education experience stress from parental pressures. Parents pressure their children to succeed in school. They want to see good grades, but they also want to see success in life's other areas. In their attempts to guide their children, parents can become one of the major causes of stress on students by over-emphasizing academic success while neglecting physiological success.

Is the pressure to achieve academically causing stress related academic failures in our children? Modern times are seeing children treated for anxiety disorders and other stress related health problems more than at any other time. Medical appointments and taking mood-altering drugs can place an additional strain on already stressed children.

As previously noted the psychological benefit of exercise, especially the release of Dopamine during aerobic workouts, may become an overwhelming drive for an already stressed student who may then become susceptible to compulsive workouts.

The addition of medical related routines or appointments and the introduction of exercise to an already rigorous academic schedule may produce adverse effects on learning by depriving students of sleep or necessary "down time".

Scheduling
Our children are part of a generation that may be suffering from over-scheduling. We know they have higher incidents of anxiety and stress related illnesses, are being diagnosed and treated with drug therapies at a greater rate than previous generations and are showing significant failures in demonstrating applied learning in the workforce following the period of institutional education.

So, whatever happened to play for its own sake? We have serious, goal-oriented, skill-building adult-managed activities and programs instead of the freedom and carefree laughter of backyards, parks, fields and swimming holes. Many parents believe that the presence of free, unstructured, unsupervised time for their children is the equivalent of wasted time, missed meaningful opportunities and a reflection of poor parenting. They believe this in spite of recent scientific research that supports the theory that self-initiated, unstructured creative play is the single most important activity that young children can engage in to develop at all developmental levels, including neurological and cognitive growth.

In addition the rigorous scheduling of children's activities does not give them the opportunity to develop time-management skills, offer the necessary "down time" and can also interfere with restful sleep patterns. This is especially true when exercise routines or sports are scheduled within three hours of expected sleep time and the body is still experiencing a Dopamine rush.

Some past research on sleep suggests that people who sleep fewer hours a night may have psychological maladjustment. Sleeping shorter amounts of time has shown to increase factors such as anxiety and stress, which have been associated with academic performance (Kelly et al, 2001). These factors cause students problems by causing shortened attention span and also increasing the number of errors students make on tests.

Kubitz, Landers, Petruzzello, & Han (1996) found that acute and chronic exercise was related to an increase in slow wave sleep and total sleep time, but was also related to a decrease in sleep onset latency and REM sleep. Those engaging in an acute bout of exercise went to sleep more quickly, slept longer, and had a more restful sleep than subjects who did not exercise.

High school workloads, and later college workloads, are heavy for many students. For secondary students planning on tertiary studies, high school grades are important. So is the number of subjects. As a result, students may overload their schedules. In college, where a financial investment has been made, students may overwork to reach their goals and benefit from the money spent.

The adolescent years are also when biological forces drive the quest for interpersonal relationships with the opposite gender. Fighting this is a losing battle that parents may try to engage in. Instead ample free time for socializing must be afforded to the student while being balanced with other needs.

Prohibitions on socializing in lieu of other scheduled activities can have the opposite effect of that which is desired. The student may become resentful of the other activities and can also become socially outcast. Being socially ostracized can cause anxiety and depression which as previously noted can have a negative impact on academic performance.

This is an issue that I am often confronted with in mediation or litigation. I have a parent tell me "He has played soccer since he was seven and I want him to continue." The other parent may have already recognized that at age 15 he is into girl chasing now and soccer just doesn't carry the premium for him that it used to. Some of the schedules I see parents trying to maintain for their children make me dizzy.

Conclusion

When examining the issue of academics v athletics the evidence is clear that athletics or physical-activity in general is the most viable of the two. While there have been significant advances in medical technology brought about by the discoveries and training of those in academic institutions they still have not been able to replace or improve upon the well maintained and fit human body. While exercise has been shown to improve physical health a causal relationship between exercise and mental health has also been shown. No such evidence exists that while academics may be used to improve mental health that there is also a causal relationship between learning academics and improved physical health.

With the increase in legal and societal pressures for children to maintain top-tier academic performance there has been a corresponding increase in mental-health related illnesses. These may include anxiety, depression, general mood disorders, attentiveness/concentration issues, insomnia, stomach/intestinal issues and suicide.

The pressure to perform academically in lieu of maintaining proper physical health has produced a Catch 22. Institutional policies banning students with lower academic achievement from participating in athletic/exercise programs actually exacerbate the problem.

By removing what is sometimes the only positive factor to a child's potential academic achievement (or elevation in mood) parents and schools are creating more barriers to a child's academic performance, physical health, mental health and general satisfaction with life.

Students pressured to excel academically who are concurrently deprived of exercise are more likely to have physical ailments, difficulty sleeping, difficulty concentrating, become overweight, have lower self-esteem and suffer from reduced learning. Additionally, children deprived of the Dopamine induced "high" produced by exercise may turn to prescription pain killers or street drugs as an alternative.

What we know to be true is what we should practice. When all else has gone awry we claim to at least have our health, not our transcript or degree.

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