Stuart Showalter Law Blog: Violating Joint Legal Custody and the Consequences

Lately my nearly exclusive focus has been on the case of Moore v Moore. This particular case has proved to be excellent fodder for doing such things as explaining joint legal child custody, the harm that third-party evaluators can cause, the importance of communication and finally, today, the consequences of intentionally violating a court's orders.

Starting at a time before reaching a settlement agreement in this case Kristy Moore appears to have embarked upon a nefarious plan to divorce her former husband from their children. Considering Kristy's personality type and the limitations of her intellectual disciplines one quickly realizes that she is not in this alone.

The account that I will provide to you here comes from court testimony, filings and written messages.

Kristy lived with her parents for about a year while amassing a $20,000 war chest for the purpose of deconstructing the Settlement Agreement which she had just signed. That agreement called for her and Brian, the children's father, to equally share joint legal and physical custody. The parenting time arrangement has generally been alternating weeks. Matters not specifically settled by the Settlement Agreement were resolved with the assistance of parenting coordinator John Ehrmann. This included the stipulation that the children would attend a private school located about half way between the parents' residences and in close proximity to the Indianapolis Public School where Kristy was working.

In well under a year after signing the Settlement Agreement, Kristy filed a motion to modify custody. In that motion she was seeking both physical and legal sole custody of the children. It was her contention that she did this "for the children". This was quite contrary to the recommendation of Ehrmann who opined that if Brian was awarded sole custody that Ehrmann was sure that Brian would still involve Kristy in the major life decisions regarding the children. Kristy though has stated that she wants sole custody because it would be easier and that she could just do things her way.

When Kristy was relocated by IPS to another school she refused to disclose to Brian the location of that school even though he was trying to find a school that the children could attend that would be convenient to both parents and possibly not result in tuition fees for either. Kristy alleged though that she was afraid to let Brian know the location. Del Anderson, The GAL, says that he believes that Brian is a "danger" to Kristy and the Children.

Kristy has clearly indicated that she has no interest in mediation and that even though the court has ordered mediation that she will not enter into negotiations in good faith. It is going to be her way, end of story. Attorney for the GAL, Cynthia Dean, agrees and has told Brian that he needs to compromise by agreeing to Kristy's demands and that if he doesn't then joint legal custody is not appropriate.

Kristy's strategy has been to keep Brian involved in continuous litigation in an effort to drain him financially and emotionally. For custody she planned to divest Brian of legal custody by demonstrating that child rearing had become a battleground. Once legal custody was established she said that she then wanted to enroll the children in Pendleton schools. This is within about a mile of her home and far from the school agreed upon by both parents and further from the marital residence in Broad Ripple where Brian lives. The proceedings have drug on though. It has now been about two years since Kristy filed for the modification and her patience or, more likely as she has said, the money she saved that is being used to pay the attorney is running out. Her solution was to enroll the children in the Pendleton schools for the 2012-13 school year after they began attending their agreed upon school, Cornerstone.

This was done without the consent of Brian or the Court. As far back as 13 June 2012 the issue of relocating the children's school was raised. At that time Judge Heather Welch told all parties, including Cynthia Dean, that the children were not to change schools until further order of the court. Upon a motion filed by Brian asking the court to determine the children's school for 2012-13 the Court reiterated its order on schooling. In the 16 August 2012 order Judge Welch said that the children were to remain at the same school as they had been in last year [Cornerstone] and that neither party could change the children's school unless by agreement or order of the court. The next day Cynthia Dean told Brian not to return the children to Cornerstone as ordered by the court. Brian did not take the bait and instead complied with the order.

Kristy did not. She enrolled the children in the Pendleton schools and took them there on Monday 20 August 2012 just two days prior to the scheduled hearing on a contempt petition against her for violating the joint custody agreement. There was also an emergency hearing for school placement scheduled to run concurrent. It was going to be up to Judge Welch to determine if Kristy was in contempt.

Judges aren't to show emotion from the bench that could be perceived to favour one party. In The Judge's Book, the National Conference of State Trial Judges states that the judge should “not engage in body language that inappropriately discloses [his or her] feelings or conveys a belief as to the weight of the evidence.” Judges should be cognizant that their facial expressions and even the nodding of their heads can have an impact on the parties’ perceptions of judicial fairness. However cognizant Judge Welch may have been of this it was apparent to me that she was displeased to put it in a polite context. She had good reason to be upset. Here is her order of 16 August 2012.

ORDER ON RESPONDENT'S MOTION TO COMPEL SCHOOL ATTENDANCE

The Respondent, having filed his Emergency Motion to Compel School Attendance on August 14, 2012, and the Court, having reviewed such Motion and being duly advised in the premises, now finds that the Respondent and Petitioner do not have permission of the Court to have the children attend a different school then [sic] they attended during the school year of 2011-2012 unless they both agree pursuant to the Settlement Agreement approved by the Court on December 10, 2009. If either party violates the Court's order, they may be found in contempt of Court. [emphasis added]

SO ORDERED this 16th day of August, 2012.

Heather Welch
Judge, Marion County Superior Court Civil Division Room 12

Distribution:
Cynthia Dean, Esq.
Jonathan Deenik
Brian Moore

The children attended Cornerstone Baptist Academy during the 2010-11 and 2011-12 school years. Judge Heather Welch said in court on 13 June 2012 that the children were not to change schools without her approval. Brian, Kristy, Cynthia Dean and Jonathan Deenik were all in court that day and heard that admonition. Reread the order an see if you can determine what school Welch has ordered that the children are to attend for the 2012-13 school year. Now it's time to play, Are You Smarter Than an Attorney for Child Advocates, Inc.? Here is the email that Dean sent to Brian the day following Welch's order of 16 August 2012.

From: Cindy Dean
To: brian moore ; Jonathan Deenik
Cc: Del Anderson
Sent: Friday, August 17, 2012 2:25 PM
Subject: Moore children

Mr. Moore,

The GAL has been contacted by a Pendleton School professional stating you have informed the school that the children are no longer to attend Pendleton schools and a hearing is set for next Wednesday, August 22 at 10:30.

I have also received the three orders issues by the Court yesterday and I would direct your attention to the Order that states the children are not to attend Cornerstone Baptist but instead set this matter for hearing.

If both orders are read, it would appear the children are not to attend school until order of the court. I don't believe this is the intent of the Court particularly since CBA will not admit the children without a court order and the children are able to attend Pendleton at this time. Clearly, everyone should agree it is in the children's best interest to attend a school awaiting Court action.

I would like to hear from you as to whether the children will be attending school Monday through Wednesday at Pendleton. [emphasis added]

Sincerely,

Cindy Dean

In a legal sense the children are not able to attend Pendleton by way of an order issued by Judge Welch from the bench on 13 June 2012 and reduced to writing on 16 August 2012. Cornerstone told Brian they would need a court order for the children to attend because Kristy had spoken to the principal there on Sunday 12 August 2012 and said she did not consent to the children attending school.

During the contempt hearing Judge Welch reiterated her 13 June 2012 order. She stated that she was sure that she told all the parties that the school was not to be changed. Cynthia Dean responded that she didn't recall that. Same for Jonathan Deenik. Kristy stated that she must have missed the part of the order that said not to change the school and didn't understand that they couldn't be sent to Pendleton. Welch went on to say that lawyers in the room know that joint legal custody requires both parents to consent.

In giving her ruling from the bench on 22 August 2012 Welch included some important dictum. Welch said that she had not wanted to decide on the children's school that day. No one had supplied information about schools to her. She knew that neither parent was able to pay for the children to continue at Cornerstone and that the children were currently at Pendleton Elementary School.

Both parents were scolded for their behaviour that is not in the best interest of the children. Brian was told that he gets agitated too quickly. Kristy was told that her refusal to communicate is causing problems for everyone.

It is no surprise that Brian gets agitated though. He has to deal with a parent who will not communicate, a GAL who won't do his job and an attorney for the GAL who lies to him about the children's schooling and has obviously sided with Kristy and her attorney. Of all the people involved Brian was the only one making an effort to provide some stability for the children's 2012-2013 school year.

Welch then ordered that the children were to continue attending Pendleton Schools because that is what she was forced into by mother enrolling them there and no one having provided details to her about other options. She then modified the parenting time order to ensure that the children would still have sufficient time with Brian.

Brian is to have the children every weekend from Friday after school until he returns them to school on Monday. Kristy is responsible to transport the children to Brian on Monday after school and then Brian returns the children to school on Tuesday morning.

Welch then gave her strongest rebuke to Kristy stating that Kristy's motivation was to get sole legal and physical custody of the children by changing their school to one closest to her home. Kristy was found to be in contempt of court. The decision on punishment was taken under advisement. Welch rejected Kristy's contention that she did not understand the order and said that Kristy's testimony was "not credible" -- the polite way to say you are a liar.

Attorney’s have ethical obligations which, in this case, were not met. Here, a well thought out strategy of stop communicating, then get sole legal custody, then move the children's school and then seek sole physical custody fell apart over a two year period.

Kristy said it was her priority to keep paying her attorney, Jonathan Deenik. She also said she had no money to pay for the children's school. When asked if it was more important to pay an attorney than send her children to school she said, "That doesn't make sense." But it probably sounded like it made sense when it was told to her -- "It would be better to keep paying me instead of paying for the children's school because we are going to get the school changed to Pendleton and then you can get sole physical custody." I am only speculating but at this juncture does it seem like anything else is probable.

So here is what happens when a nefarious plan goes awry. Legal custody does not get modified but it now appears that Brian may be more likely to get sole legal custody if Kristy continues her refusal to communicate. Physical custody does not get modified but Kristy's parenting time has been reduced from every other week to Tuesday, Wednesday and Thursday from when she gets home around 5:00pm until the time she leaves to go to work the following mornings at 6:30 am. Figuring on eight hours of sleep for the children her parenting time is now 16.5 hours per week. That is a significant reduction and sends a clear signal.

Summary

When courts issue orders it is expected and incumbent upon the parties to adhere to them in both form and spirit. Failure to do so except under exceptional circumstances is likely going to raise the ire of the judge. It is a form of disrespect. If a party feels that an order is unreasonable or no longer effectively serving the purpose for which it was issued then there are due process procedures by which one must follow. In this case Kristy was found to be in contempt of court. The judge has taken her punishment under advisement.

More difficult for Kristy is the presumption that she now faces -- past behaviour is generally acknowledged to be a predictor of future behaviour. Thus, a power shift in the custodial arrangement is now more likely that would put Brian in the position of having authority and delegating that to Kristy. Said another way -- Brian would be the appropriate parent to have sole legal custody. They should seek to enter into mediation as expeditiously as possible.

Parents became parents through their union during the time of conception. Whether during a long standing marriage or a fleeting relationship that existed for only moments after meeting parents will remain parents of their children so long as those children live. This is going to require communication and cooperation for the benefit of the children. Continued animosity and acrimony on the part of parents takes a significant toll on the wellness of parents and more acutely on the children. Mimi Lyster, an expert on parenting plans, in her book Building Agreements That Work discusses the benefits of negotiation: "Most researchers -- especially those who study the effects of divorce on children -- believe passionately that using the court to resolve custody issues is a mistake in all but a few cases. It is far better, in the opinion of these researchers, for parents to negotiate their own parenting agreements, with the help of outside experts such as mediators, counselors, and lawyers on an as-needed basis."

Forgiving past transgressions of the other parent and embracing dialogue will have a profound effect on your productivity, enjoyment of life and the well-being of your children. After all, do you want your child to be placed in the position of giving birth to your grandchild without you being there because she didn't want to offend either of you by deciding which one of the two parents "who can't be in the same room together" to invite to the birth?

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