Part III Child Advocates, Inc. and third party contributors to child custody proceedings

Thus far I have given you a background of the Moore v Moore case and also an analysis of the two parents. Now I am going to provide some information to you about the third-party participants in this case.

Upon reading this you should understand their stake, the expectations of them and where I believe there may exist the potential for conflict. It is the structure of the child custody system that I believe has allowed for unscrupulous third -parties to exploit the weaknesses in the system to their advantage.

Parents have often come to me with complaints that evaluators, GAL's, therapists and other supposedly disinterested third-parties made recommendations not supported by the evidence. Often times it is difficult for me to accept these allegations as more than conjecture. Few parents find that their actions justify a downward modification of their custodial status. However, careful examinations of the parents and the evidence presented to the court often reveals that most non-custodial parents have rightfully earned that designation. I experience this first hand.

My client list is very exclusive and consists only of those applicants who present the most compelling or challenging cases. I maintain a high standard of rigor for my clients and those who fail to abide that challenge get dismissed. What remains are those who are most dedicated to preserving a relationship with their children and seeking to create custodial arrangements in their child's best interest. About 95% of the people who seek my assistance don't even both to apply for services. Rightfully so, they have earned the badge of NCP.

There are those compelling situations though which appear to be a miscarriage of justice -- clearly unlawful custody orders, apparent bias in the decision or third-party evaluators who appear to have made a recommendation fraught with glaring inequities and possible malevolence. Such possible malevolence by third-party evaluators is what has happened in the current case. Unlike most, though, this time there is a smoking gun.

There has long been allegations throughout the country that child custody evaluators [CCE] conspired to make recommendations directly opposite of what is in the best interest of the children. The motivation is hope that the parent receiving unfavourable treatment would litigate further to protect the children and hire another CCE. It appears that the this scheme may be unraveling here in Indiana with Child Advocates, Inc.

In the Moore v Moore case there are three current third-party contributors of which two are actively involved. Additionally there was a parenting coordinator [PC] in the past. My analysis here will primarily focus on the two active participants, Cynthia Dean - Attorney for the GAL Del Anderson, both of Child Advocates, Inc. Robin Pannell of the DRCB has also been involved this year and Parenting Coordinator John Ehrmann had participated through 2011.

For lawyers like Cynthia Dean there are particular standards that should be observed. I have taken the following from the American Bar Association [ABA] Section of Family Law Standards of Practice for Lawyers Representing Children in Custody Cases approved by the American Bar Association House of Delegates August 2003 --

“Best Interests Attorney”: A lawyer who provides independent legal services for the purpose of protecting a child’s best interests, without being bound by the child’s directives or objectives.

The lawyer should investigate the facts of the case to get a sense of the people involved and the real issues in the case, just as any other lawyer would. The lawyer is in a pivotal position in negotiations. The lawyer should attempt to resolve the case in the least adversarial manner possible, considering whether therapeutic intervention, parenting or co-parenting education, mediation, or other dispute resolution methods are appropriate. The lawyer may effectively assist negotiations of the parties and their lawyers by focusing on the needs of the child, including where appropriate the impact of domestic violence. Settlement frequently obtains at least short-term relief for all parties involved and is often the best way to resolve a case. The lawyer’s role is to advocate the child’s interests and point of view in the negotiation process.

From the guidance provided by the ABA readers should understand that it is the duty of the best interest attorney to attempt to get the parents to cooperate towards reaching resolution on child custody related matters. Particularly it is the duty of that attorney to make an "attempt to resolve the case in the least adversarial manner". To help you understand the role that Cynthia Dean has taken I will let you start by reading an email from her.

Here is an email dated 10 July 2012 from Cynthia Dean to Brian Moore --

Mr. Moore,

Please see the following response that I received from Mr. Deenik.  He states Kristy Moore will agree to mediation as long as it does not delay the trial; which I believe you agree as well with this term.  The second term is that you pay the costs.  I am guessing you would have preferred to divide the costs.  In deciding if these terms are acceptable, I suggest you consider that it is always better to reach an agreement than to proceed to Court and to allow a Judge to make decisions concerning your children.  Secondly, successful mediation results in less “damaging words and statements” between you and Ms. Moore which will make it more difficult to co-parent in the future.
 
I have sent an email to Chris Barrows to determine if he has time available and his current rate to give you an idea of the expense and if scheduling prior to trial is possible.
 
Best regards,

Cindy Dean
[emphasis added]

I have emphasized two portions of this email from Ms Dean. Second part first, she states that successful mediation results in less “damaging words and statements” between the parents. Very true and a strong incentive if your desire is to co-parent. Ms Dean is aware of the temperament of both parents. I showed to you email exchanges between Brian and Kristy in Part II of this series. When conversing about Summer parenting time schedule Brian closed a rather lengthy message with "I want to help make things easier for you." I also disclosed to you what Kristy said were her motivations and priorities -- Kristy has stated that engaging Brian in a legal fight is more important than the children's schooling. Particularly she acknowledged "I feel this is something that I have to do" when she was asked about wanting sole custody of the children. Her motives, according to her, is that this is being done "for the children."

Clearly it is Brian's intention to co-parent while Kristy's compelling drive is to be a single parent. As she said herself about sole custody -- "It would just make things easier for me." Cynthia Dean is aware of this. She has been to the court hearings, corresponded with both parents, reviewed the court record and been copied on numerous email messages between the parents.

Does it then seem at odds with the temperament that has been displayed by the parents that she would caution the parent who is clearly in favour of co-parenting about the hazards of failed mediation. Such an admonition would seem more aptly placed with the parent who is resistant to co-parenting. As you will find out in Part V her caution was clearly misplaced.

Now back to the first portion that I highlighted. There it appears that she is pressuring Brian into paying the entire cost of mediation. She alludes to the fact that if he doesn't agree to pay all of the cost then there will be no mediation and the matter will be left to a judge to decide.

This recommendation to blindly accept the entirety of the terms as presented by opposing counsel is inconsistent with generally accepted mediation strategies. Having both parented "invested" in the outcome helps to achieve conciliation. When one party, particularly the party who opposes reaching an agreement, is not under any obligation to pay a portion of the cost then there is no extrinsic motivator -- financial costs -- to achieve a prompt agreement.

There was also another option besides Brian pay all or supplant mediation in favour of trial. That was also consider the judge's order on the mediation fees rendered that day.

ORDER

The Respondent, having filed his Motion for Mediation on June 26, 2012, and the Court, having reviewed such Motion and being duly advised in the premises, now orders that: 
1. Respondent’s Motion for Mediation is GRANTED. 
2. The parties shall agree upon a mediator within 10 days and report such to the Court along with the date for which mediation has been scheduled.  In the event the parties are unable to agree upon a mediator, then the Court shall provide a striking panel or appoint a qualified family law mediator.  
The parties are to each be responsible for paying half of the mediation fees and shall make arrangements with the mediator for payment of those fees.  [emphasis added]

Certainly to me it appears that Cynthia Dean has demonstrated a bias towards the mother by parroting mother's wishes as expressed through her attorney, Jonathan Deenik, as the recommendations to Brian. Dean had a copy of the Motion for Mediation filed by Brian in which he asked both parties to pay equal portions of the mediator fees. Dean also receives copies of the Court's orders. Yet her email to Brian does not seem to convey the attitude of trying to achieve resolution in an expedient and non-confrontational manner.

Her recommendations go against sound, established protocol and are not in the best interest of the children. The person who should have been cautioned about the potential harm to the children is the mother who filed for sole custody and doesn't want to mediate.

In Part V you will get to read the full text of an email by Dean that demonstrates the depth of her collusion with Deenik. Ask yourself, has Cynthia Dean advocated for the best interest of the children by maintaining a neutral role in attempting to bring the parents together in the least adversarial manner.

Next I examine Del Anderson, the GAL provided by Child Advocates, Inc. I want to be graceful in saying this while still providing an accurate assessment of Mr Anderson's qualities. Understanding that the Types attracted to occupations in this field tend to be introverted and intuitive can lead to the expectation of a rather reserved individual who may appear contemplative while feeling out a response. However, I was still struck by the first impression of Mr Anderson as someone who is not firing on all cylinders, elevator isn't quite reaching the top floor or -- candidly -- I just don't feel that he ranks above average in intellect and has some difficulty in making logical conclusions.

Problem number one that I have with him is that he was in court on 13 June 2012 when Judge Welch told all of the participants that the children's school was not to be changed unless she ordered it. The general start date of schools in the area was well known and the particular start date of Cornerstone could have been easily obtained. Yet, Mr Anderson knew that Kristy wanted to change the children's school to Pendleton, that mediation had been indefinitely postponed, that Kristy had enrolled the children in a different school in violation of the Court's order and yet he did nothing to reduce the disruption of the children's lives causes by Kristy's refusal to comply with the Court's order.

It has also been very close to one year now since Mr Anderson was retained to provide services to the court, including a written custody recommendation, which he still has not done although the date of the hearing as originally scheduled has already passed. He has managed to provide a thought to Robin Pannell of the DRCB -- "Mr. Moore might harm Ms. Moore and the children as a result of his "rage and pain."" In Part IV you will get to read numerous email exchanges between Brian and Kristy. You will be able to use your own judgment as to whether you feel Brian "might harm Ms. Moore and the children".

Finally, getting back to my first impression thoughts, is his ability to construct logical abstractions. Perhaps inability. When asked about his basis for recommending that the mother have sole custody and determine where the children attend school he gave this response -- there is a public school in the district where the mother lives. Therefore, the children could attend a school with children near where they live.

Before thinking that this seems logical enough understand this -- the Indiana Constitution provides that all children have access to a free and public education. Hence, there is a public school in the district where the father lives. It is easily within one mile of his home. Distance from mother's home to local school -- over one mile, about the same as father's.

We have all heard someone searching for a rational reason that appears to support a decision that was based solely on a feeling or an impulse. It feels phony. When the basis for the decision is illogical we know it is phony. Obviously there is a bias that exists but the "rationale" is offered because the provider of the opinion is aware that a justification based upon his or her apparent bias is not acceptable. Such is the case with Mr Anderson.

Prior to Kristy's Petition to Modify Custody there was a Parenting Coordinator, John Ehrmann, that helped facilitate the Settlement Agreement, select the children's school and address other issues. The parties participated in two mediation sessions in which Kristy refused to negotiate. Ehrmann, a Level II & III PC, had made a recommendation that Kristy get counseling for issues related to her attitude towards Brian. She has never done so.

There is not much I can say about Robin Pannell of the DRCB. I have not met her but have only read her report which was timely prepared. Kudos to her for not dragging this process out and, as I see it, failing to make any credit contribution to the process as Mr Anderson has done.

CCE's and these third party participants need to make efforts to ensure that they are cognizant of potential biases. I have take from On being a child custody evaluator: Professional and personal challenges, risks, and rewards by Daniel B. Pickar as published in the Family Court Review, Vol. 45 No. 1, January 2007 pp103–115.

"Experienced evaluators must also be aware of confirmatory bias, that is, the tendency to overvalue evidence that supports one’s hypotheses and a tendency to ignore non-confirmatory evidence. This may happen when the evaluator, based upon initial impressions of the parents, comes to conclusions too quickly in the process and then looks only to data which confirm these initial impressions. The evaluator must remain open-minded throughout the process and even aggressively search for data which is disparate from predominant analysis of the case.

The American Psychological Association CCE guidelines (APA, 1994) require that psychologists not only maintain awareness of personal and societal biases, but must also strive to overcome them or withdraw from the evaluation. In reality, however, most custody evaluators do have biases, some of which they may be cognizant and others not. Some evaluators may have preferred custody arrangements they typically recommend. Some may have a bias toward mothers or fathers, while others may have a bias regarding religious participation or concerns about homosexual parents. For example, with respect to gender bias, Bradshaw and Hinds (1997), in a study in Australia, found that, when 51 CCEs were analyzed for evidence of sex-role and sex-trait stereotyping, male and female evaluators significantly favored the parent of their own gender in their categorization of various dimensions of parenting behavior."

Confirmatory bias exist throughout our daily lives. We may experience it when receiving a phone call from someone whom we were thinking about at the moment. Confirmation bias tells us that the uncanny event is the manifestation of some mystical connection with the person. But the other 25 times that thoughts wandered to that of that particular person we are unlikely to have thought about the person not calling, stopping by or being in the next aisle at the grocery.

As a dedicated father who was the primary support provider for my son at no less than 90% of the time and then stripped of custodial status after his mother filed for dissolution I must remain vigilant of possible biases on my part. My continuing education and strong dedication towards being gender neutral has helped me maintain objectivity and respect in the child custody litigation community while serving both male and female, custodial and non-custodial parents.

It is important that courts, litigants, practitioners and most importantly, CCE's, understand and acknowledge the potential for biases and the lack of objectivity on the part of CCE's. All children deserve to have two loving parents who will both strive to achieve accommodations that suit the best interest of the children. Absent having those two parents who will objectively cooperate for the needs of the children, it may be necessary for courts, through using these third-party participants, to fashion appropriate accommodations.

When those third-party participants fail to maintain their neutrality and objectivity then the benefits to the child may be lost and actual harm may be perpetuated or intensified.

If you need assistance with a child custody matter, including critiquing on CCE's, GAL's or other third-party participants, then please visit my website and contact my scheduler to make an appointment to meet with me.

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

©2012 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.