PART IV - Proper Communication for Joint Legal Child Custody - Indiana case law

Thus far I have provided to you a simplified background of the case of Moore v Moore [Part I], information about the parents [Part II], and reviewed the third-party players and their respective roles [Part III]. Today I move on to an exploration of the communication between the parties and an analysis of those communications. In the final posting [Part V] I will present to you the smoking gun -- the email from Cynthia Dean instructing Mr Moore to violate the Court's order -- my efforts to get a formal investigation by state agencies into the actions of Child Advocates and Cynthia Dean, and the ruling by Judge Welch.

My analysis of the communication by the parties will generally be segregated from the actual texts of their messages. I do this so as not to prejudice your conception of the content of the messages. Thus, the string of exchanges will be titled based upon the overall theme which I will then refer to in my analysis.

Kristy has stated in her 2010 petition that she is the parent that is fit to have sole legal and Physical custody of the children. She then has the burden of demonstrating this to the court. Following are some case law references related to modification of child custody and parenting time orders.

The party seeking the modification bears the burden of demonstrating that the existing custody order is unreasonable because, as a general proposition, stability and permanence are considered best for the child. Haley v. Haley, 771 N.E.2d 743, 745 (Ind. Ct. App. 2002).

[W]hen a parent blatantly disregards a court custody order, a trial court can draw a reasonable inference of future lack of cooperation. See Bays v. Bays, 489 N.E.2d 555, 561 (Ind. Ct. App. 18 1986), trans. denied.

We cannot allow a parent with primary physical custody but joint legal custody to sow seeds of discord and then seek to obtain sole legal custody because of that discord. See Pierce v. Pierce, 620 N.E.2d 726, 731 (Ind. Ct. App. 1993), trans. denied. Where a parent with physical custody voluntarily causes joint legal custody to become unreasonable, that parent may lose custody of the children. Id.

The following narrative includes the ver batim communications between Brian and Kristy about scheduling accommodations and schooling, court orders and motions by the parties as well as recollections of court testimony. For brevity I have not included entire texts of these communications but can provide such -- including full headers -- for any legislator, regulator or media. The court testimony is public record but has not been transcribed at this point. Now onto the communication between the parties.

Pursuing Cooperation

The evening of 22 May 2012, following the status hearing, Brian sent a lengthy email to Kristy which expressed his frustration over her unwillingness to cooperate towards achieving a beneficial outcome for their children as well as themselves.

You asked me for a change in parenting time a few days ago to accommodate your schedule this week.  I granted it without hesitation, and look at the “thanks” I got today in court.

Although in an email dated 17 May 2012 Brian had asked Kristy about establishing a Summer parenting time schedule she requested a court hearing on the matter.

Deenik said you want to have a hearing over summer parenting time and “right of first refusal.”  Given that I had indicated in the email a few days ago that I wanted to accommodate your schedule, and that I would even consider letting Pat watch the kids, I had certainly demonstrated that I was willing to talk.  I, for one, was trying to act like an adult.  Why do you want to take simple issues to court?  Have you ever considered talking to me reasonably?  Do you have to let other people make all your decisions for you?  Do you enjoy paying Deenik?

Brian again offered to be accommodating of Kristy's schedule in trying to establish a Summer parenting time schedule.

IPTG indicates that I should have the kids Memorial Day weekend from 6 PM Friday until 7 PM Monday.  In general, we have followed IPTG; however, we have also adhered strictly to our alternating week schedule sometimes instead.  I would be willing to discuss this weekend’s schedule with you.  You have some options:  1.) You can spend a bunch of money and have Deenik contact me about Memorial Day weekend.  2.) You can opt to let the court decide June 13th, which would be too late.  3.) You can email me with your suggestions.  Maybe even try being nice.  Once again, I might be easier to deal with than you suspect.

Brian also made reference to Deenik lying about whether he had rested Kristy's case-in-chief at the 19 September 2011 trial.

Deenik lied to the court today, deliberately misrepresenting what happened September 19th.  He said we had spent nearly a full day in court, had wrapped up most of the issues, and that there were only a few things left to discuss.  He knew I had not presented my case, and maliciously lied in an effort to prevent such.  Fortunately, the judge has a tremendous memory, and recalled what had actually happened.  To her credit, she graciously agreed to give me ample time to present my case.

Let's select a school

Two days prior to the 13 June 2012 hearing on Summer parenting time Brian asked for Kristy's input in helping to select a school that would be convenient for both parents. It is not explicitly stated in this email that Brian is seeking information for the purpose of selecting possible schools for the 2012-2013 school year but it is apparent in context if you are intimately familiar with the case.

"Kristy,

The kids told me this morning that you would not be teaching at IPS #103 next school year. If this is correct, please let me know what school you will be teaching at so that I can begin to plan accordingly.

Thanks,
Brian"

However, Kristy again has not respond to date to this request.

In an email dated 19 June 2012 from Brian to Kristy he asked for her input about a parenting time exchange and also, again, mentioned the issue of selecting a school and requested that Kristy inform where she is currently employed so that he could investigate school that would be proximate to their respective places of employment and homes.

Kristy,

1.) Will you please give me the name and address of the IPS school where you will be teaching in the fall? I need to know this in order to start investigating school logistics and choices for [child 1] and [child 2].

2.) I will be working during the day both Thursday and Friday of this week. Therefore, I am fine with just having the kids overnight Thursday night (6/21/12). Could we do the exchanges Thursday evening at 5:00 PM and Friday morning at 10:00 AM, both at the WalMart on Pendleton Pike? Please let me know what you think.

Thanks,
Brian

Here is the response from Kristy which was sent on 20 June 2012.

Brian,

I'm not paying for private school.  I can't afford it.

I'm fine with meting [sic] you at walmart, but I thought the time was 6:00.

Kristy

The Philosopher

On 31 July 2012 Brian sent a very long, philosophical email to Kristy. He raised numerous issues. These include the costs to the children of protracted litigation, the damage it can do to the parent's relationship, the financial cost of the battle and his desire to avoid litigation.

Please bear in mind that you are currently the only person who can stop this fight.  Deenik will not advise you to stop it, and will encourage you to keep it up for his own selfish gain.  However, you have the authority to stop this nonsense by instructing Deenik to withdraw your motions. 
 
If you and I agree to something, the battle can be over.  I do not believe the GAL or the DRCB have any reason to continue the case.  I think you and I have come far enough in the last few years to be able to arrive at an acceptable plan.   I think if this fight was over we would both feel a huge burden lifted.  We would then be able to move on with our lives and co-parent effectively for the benefit of [child 1] and [child 2].

Most important though were these thoughts.

The trial will be long after the school year has begun, so school choice will have to be decided either at mediation or at a hearing.  Since school is a big issue, getting a hearing long enough and soon enough will be difficult.  Therefore, we will probably have to decide the school issue on our own for the wellbeing of the kids.

Here is Kristy's response in its entirety.

We will be going to court.  If you keep extending this process, I will be forced to move back in with my mom.

Enrollment Day

On 09 August 2012 Brian notified Kristy by email that he had complied with his obligation under the Settlement Agreement adopted by the Court regarding schooling for the children. He provided information about what she still needed to do during the time she would have the children the following week. He also offered to assist her with any logistical needs she may have.

[[child 1]] and [[child 2]] have attended Cornerstone for 2 1/2 years, beginning in January of 2010 when Dr. Ehrmann instructed us to do so as Parenting Coordinator.  Since you and I had not discussed or agreed upon a different school, and since the Judge had not ordered otherwise, this means the kids needed to stay in Cornerstone.  I did not want them to be truant, either, and I am sure you would agree. 
 
The kids will need to be at Cornerstone for the start of school Monday (8/13/12) by 8:00 AM, the same time as last year.  I do not know exactly what time before-school care opens.  Also, you will need to stop by the office and sign your Financial Agreeent [sic] and pay the matriculation fee ($300) and tuition for one child.  I went to the office yesterday and signed my Financial Agreement and paid; there was no other paperwork that needed to be done since the kids were simply returning students. 
 
If there is anything I can do to help with the logistics in the mornings please let me know.

On 13 August 2012 early in the morning Kristy responded by acknowledging that neither parent has the legal authority to enroll the children at a school. Thus they will have to continue with their formal education where currently enrolled -- Cornerstone Baptist Academy -- as agreed upon by the parties. But, she also stated that she was not going to send the children to school.

Brian,

Neither one of us can legally enroll the kids until the judge decides on our case.  Deenik will make a motion today for a special hearing for the school decision.  Since you are working today, Leesa will be watching the kids.

Kristy

Brian responded within an hour, prior to the start time of school for the day.

You are incorrect that "neither of us can legally enroll the kids until the judge decides on our case."  First, we could agree to a school.  Second, and more importantly, the kids were already enrolled at Cornerstone.  I did not have to fill out any enrollment forms last week, as they had never been withdrawn from Cornerstone.

Kristy followed-up with an email to Brian on Wednesday 15 August 2012 indicating that she had changed the children's school enrollment.

Brian,

I was upset to find that you did not pay the doctor bill on Friday like you told me that you did.

Also, I have enrolled the kids in Pendleton Schools this morning because I cannot afford Cornerstone.

kristy

The children were now enrolled and attending two different schools dependent upon which parent was exercising parenting time at the moment.

Deenik knows

Kristy's attorney, Jonathan Deenik, showing that he is well aware that joint legal custody requires consent of both parties or the court to make a change, filed a motion on 14 August 2012 to set a hearing for the issue of schooling. This was after the school year had begun.

2. The parties share joint legal and physical custody of the children and have reached an impasse regarding where the children should attend school.

The GAL is alive

On Tuesday 14 August 2012 the GAL left a telephone message for Brian around 3:00 pm. Brian returned call by around 3:30 and left a message.  Shortly thereafter, around 4:00 pm, Brian received an email from Cynthia Dean, attorney for the GAL, inquiring about the children's school attendance and the need for such.

Gentlemen,
 
The Guardian ad Litem has contacted Cornerstone Baptist and Pendleton Elementary School.  It is our understanding that although both schools have started as of today, the Moore children are not enrolled in either school and home-schooling has never been mentioned. 
 
I understand Mr. Moore filed a Motion with the Court for assistance concerning the school choice on August 2; however I have not received an order setting an emergency hearing.  I have also not received available dates for mediation from Mr. Deenik or Mr. Barrows confirming a new date.
 
Clearly, it is in the best interests of the children to be in school.  Do the parents intend to take action immediately to get the children in school? [emphasis in original]
 
Thank you,
 
Cindy Dean

Cindy Dean then followed-up with an email on Wednesday 15 August 2012.

Mr. Moore,
 
I have to assume your concern for the children’s safety has been eliminated. 
 
As to the school issue,  I understand you are opposed to the children attending Pendleton Schools.  However, Ms. Kristy Moore has stated numerous times that she is unable to afford CBA and it is no longer located near her employment.  The school issue may need to be decided by the Honorable Judge Welch.  If Judge Welch is required to determine which school the children should attend then I believe a strong argument may be made that Joint Legal Custody is not possible between the parents.  Clearly attending school is in the children’s best interest, an issue arose concerning the children’s attendance at CBA and both parents were aware of the issue; the parents were unable to amicable resolve the issue. 
 
I will await to receive a copy of your filing but I do cause [sic] you that if you and Ms. Kristy Moore are not able to work together to resolve fundamental matters concerning your children then it leaves little room for the Guardian ad Litem to recommend Joint Legal and Joint Physical custody.
 
Sincerely,
 
Cindy Dean

Seeking Resolution

On Friday 17 August 2012 after receiving the court orders issued on the prior day Brian reached out to Kristy in an effort to resolve the schooling issue before the upcoming hearing scheduled for five days later.

Kristy,

I just received in the mail some Orders from the Court regarding school for [child 1] and [child 2].  Have you gotten copies yet or heard from Mr. Deenik about them?  I thought you should be aware of them, so I am emailing you.  A hearing is set for Wednesday, August 22nd at 10:30 AM.

I would like for you to understand, as is my understanding of it, that the Order on Respondent’s Motion to Compel School Attendance allows us to both agree on what school our children attend.  Otherwise, the Judge will decide for us.  
 
I think your input is imperative about what school the children attend.  That is why I emailed you early in the week about the issue.  I would welcome and request your ideas on the schooling options I suggested in that email, as well as any other ideas you may have.  I think “brainstorming” about all possible ideas is important, so no suggestions would be considered out of the question. 
 
I want [child 1] and [child 2] to attend a school that is first and foremost suitable to meet their needs.  It also must to be convenient to both parents so that each of us can have the maximum opportunity for involvement with the kids in their educations, both in and out of school.  As I am sure you know as a teacher, children with both parents involved in their educations thrive more that those who don’t have both involved.  I want to do everything I can to ensure we agree on a school that affords us each with the greatest opportunity for involvement
 
I am aware that you don’t currently agree with Cornerstone due to cost and distance issues.  I do value your input, and am willing to pursue less costly education options.  As one example, I believe financial aid is available at Heritage Christian School.  We could also look in to education vouchers. 
 
As I said in Tuesday’s email, perhaps there is some way I could assist you in the mornings regarding getting the kids to school.  After all, I should be your primary support network regarding the kids.     
 
What suggestions do you have?  I would like to hear any ideas – perhaps you can elaborate on the suggestions I made Tuesday in my email about IPS schools, other private schools, or online schools.  As a teacher, you probably have exposure to lots of information about school options. 
 
I am not aware of where you are teaching.  I felt you did not want me to know when I asked you in emails two times this summer and you did not respond.  Nevertheless, I am certainly open to trying to select a school that accommodates your travel routes to and from your school.   
 
There is a likelihood that on Wednesday the Court could determine that our children attend a school other than either Cornerstone or Pendleton Elementary.  I know I would like to have input on where the kids attend school, and think you would also.  That is why I think we should try to agree on their school over the weekend.  If we could agree over the weekend, we could go to the chosen school together Monday and enroll the kids.  They could start Monday without ever missing a day.  I think that would be great

As we are both aware, the events of the past week have been disruptive for [child 1] and [child 2].  I know we would like to avoid further disruption for their sakes.  I think it would be best if we could agree on a school that the kids could attend for at least the rest of this year without changing.  Therefore, I think it is in the children’s best interest for us to work together this weekend to try to select the best school for them. 
 
Please contact me either by phone or by email as soon as you feel like addressing this.  I will change whatever necessary in my schedule to work with you on this tremendously important issue.
 
Thanks,
Brian

The result of that attempt to resolve the schooling issue over the weekend -- Kristy sent an email on Monday stating that the children were in school, would ride the bus to her house and Brian could pick them up there.

The Harmful Cindy Dean

Mr. Moore,
 
I understand the children are attending Cornerstone Baptist school today.  The children are having to endure the trauma of attending one school on Monday and a second on Tuesday.  Where do you intend to send the children the remainder of your parenting time assuming there is no order from the Court tomorrow which directs what is in the children’s best interest?
 
Sincerely,
 
Cindy Dean

Brian's frustration with Cindy Dean is expressed in his response --

Ms. Dean,
 
I intend to comply with the Court's Orders and to KEEP YOUR MEDDLING TO A MINIMUM to prevent further disruption for the children. 
 
Brian Moore

ANALYSIS

What I find here is that there are two parents who may appear to be dug-in on their position as it relates to schooling for the children. This issue of schooling was raised near the end of the 2011-2012 school year prior to a 13 June 2012 hearing. Although it was known to be a contested issue and the GAL had been appointed months earlier the GAL appears to have avoided involvement until the time that his attorney, Cynthia Dean, states the children "are having to endure the trauma of attending one school on Monday and a second on Tuesday."

Brian has made numerous overt conciliatory gestures to Kristy [Pursuing Cooperation, and Enrollment Day] and rigorously sought to discuss the issue of selecting a school for the children [Let's select a school, The Philosopher, and Seeking Resolution]. Kristy had no intention of budging on the issue of the children's school. To her the children would be attending Pendleton Elementary School and no one was going to change that. Cindy Dean certainly appeared to side with Kristy in her immovable position. In Part V I will tell you what Judge Welch had to say about those tactics.

Del Anderson has recommended that Kristy be given sole legal and physical custody of the children. Reviewing the relevant case law that I have presented herein and the behaviours of the parents, particularly Kristy who has failed to communicate and has made joint custody a battleground, one must wonder what is Anderson's basis. Anderson, by his words, is that he believes that Brian is a "danger" to both Kristy and "the children." Yet no action has been taken by any party to limit Brian's access to the children. In Part V I will tell you precisely what Judge Welch had to say about the parents and the limitations placed upon parenting time when she modified the current agreed upon schedule.

Brian is clearly frustrated by the battle harming the children and progress, or lack thereof, [The Philosopher] and particularly Cindy Dean's involvement [The Harmful Cindy Dean]. Has Brian hit upon something in alleging that Deenik and the third-party evaluators are motivated by their own financial gain and not the best interest of the children?

My take on this, which I didn't adopt until more recently after attending the hearings and seeing all of the correspondence, is now that Brian is dead on in his analysis. Deenik, I am convinced, has engaged in a strategy that is harmful to the children and is motivated by greed. Additionally, I firmly believe that Jonathan Deenik is a liar whom I emphatically denounce knowing the legal consequences of defamation. As for Cynthia Dean, this is a person who is abjectly harmful to children. She has demonstrated to motivation based upon a true desire to help children. Her bias in favour of the parent perpetuating conflict and harm to the children is well established. Moreover I believe absolutely and with the same consequential cautions that Cynthia Dean is a liar and is sociopathic. I will aptly demonstrate this in Part V when I present the Smoking Gun. Her involvement with the courts should immediately be terminated before harm befalls more children upon her urging. She has abused her position and is abusing children in the process.

Be sure to read the upcoming next and final installment in this five part series about Child Advocates, Inc. Upon reading the evidence that I present you will likely agree that my efforts at pursuing investigation of Child Advocates, Inc. by the Indiana General Assembly, the Indiana Attorney General, the Indiana Supreme Court, the Department of Child Services and various members of the media whom I know are well justified.

If you would like to develop a strategy for communication and interaction with the other parent that will be seen as most favourable by a court 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.

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