The portly Rodney Dangerfield as Thornton Mellon in the movie Back to School said that if you want to look thin you hang out with fat people. Along the same line of reasoning it can be said that if you want to feel smart you hang out with stupid people. As for me I would rather be smart so I hang out with smarter people – and try to engage them in rigorous debate. It then becomes more distressing when the folly of the less than intellectually proficient coalesce in a child custody decision that evokes cautionary words from the Indiana Court of Appeals. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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When I have provided the well constructed logical arguments supporting my contentions I usually try to credit the source when it is not a novel approach. Some of my novel approaches have resulted in child custody decisions that all parties have found favourable. I think it has something to do with not being trained as an attorney and asking the questions that pry into the 'why' of common practices and procedures. I suspect that the broader application of my thinking allows me to be more percipient than those training to think in a manner constrained by legal practices. Clearly I demand authenticity and proofs, something apparent in maintaining an agnostic stance in regards to institutional religion while still being a very spiritual person. Thus, a court rule, no matter its longevity, is not acceptable if its function is counter to the writers' intent or the purpose of the courts providing the venue to fairly arbitrate differences and in the realm of child custody cases; ensuring the best interest of the child.
When it comes to some of my proposals affecting court rules should I then not take those to the top? So it is then that I recently availed the opportunity to again converse with the always jovial Randy Shepard, former Chief Justice of the Indiana Supreme Court. Besides exchanging anecdotes about the absurdity of some of the warning statements that appear on products was my request for his input on a specific rule proposal I am writing.
Coincidentally I rediscovered the case that is the subject of this writing about the same time as that conversation. This case prompts me to add another element to a court management proposal that I am currently constructing.
In this case father appealed the decision of the Honorable Matthew G. Hanson, Morgan Circuit Court. Father's petition to modify custody and parenting time had been denied by Hanson who predisposed of future child custody petitions.
Father had good reason for seeking modification which I think he could have obtained under strict adherence to the rules. Judge Hanson made the following findings about the mother;
The mother has an extremely poor relationship with her current husband as he has battered her emotionally and physically throughout their marriage.
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.
There are currently no contact orders between the mother and her husband thanks to pending criminal charges.
As I was not there to hear the evidence I won't make comment of these findings other than they do show that mother is clearly endangering the child's physical or emotional well-being.
Judge Hanson made the following findings about the father;
That the mother believed the father has a good relationship with the child.
The father stated he had a good relationship with the child.
The father, [was] completely cogent and prepared in court to show how poor the mother has done.
But father was not without his own discrediting actions that Judge Hanson discovered.
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.
I reread these findings to ensure I was reading it correctly – “upon further research on the computer during the hearing” – that the court appears to be doing its own investigation. It is clear, the court was doing just that. The Court of Appeals also took notice saying, “We draw the trial court’s attention to the Code of Judicial Conduct, Rule 2.9(c) which 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.
Comment  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.' We strongly caution the trial court to refrain from doing any independent research in the future.”
Judge Hanson concluded by finding that “[q]uite simply the best answer here would be for someone other than these two to raise this child and give him a fighting chance.” and further commented, “Quite honestly, neither parent in this matter seems fit to raise a child. The mother cannot seem to get past her relationship issues and seems only to focus on her well being and/or happiness, while the father has committed atrocious acts against children in the past.”
Judge Hanson was clearly out of line by conducting his own investigation. There is a very valid reason for this proposition – the presentation of the evidence may not be all inclusive or balanced. I don't condemn Judge Hanson for this action other than it was a rule violation which could have handled in a different manner.
The Rules of Evidence were amended in 2010 to allow judges to take judicial notice of existing cases. That prompted my thought that judges should be taking notice of the cases involving the parties or the child. Since then I have begun constructing a tracking system for child custody cases. After reading this case I think it may be appropriate to amend Rule 2.9 to require that judges “take notice of cases involving the child, criminal convictions of any party, and any other case involving a party and the best interest of a child.”
Just because the other parent has behaved egregiously doesn't mean that the one making the accusation is good. If not for the efforts of Judge Hanson to investigate both parents then the degree to which the actions of these parents exhibit self-interest and a lack of concern for the welfare of their child may not have been known.
It is not conceivable that the great minds that craft our judicial rules would intend to keep a judge from learning of the inherently dangerous or neglectful actions that parents have engaged in that reflect on the best interest of the child. As more family law cases involve self-represented litigants the opportunities for failure to present relevant evidence is only going to increase.
The appropriate and safe route for Judge Hanson to take in this matter would have been to appoint a GAL or CASA to represent the child or do an evaluation of the parents. This can have it's problems though as I have shown through the Moore v Moore case where attorney Cynthia Dean lied to the father in an attempt to get him to violate the court's order and the GAL Del Anderson lied to the court during testimony about the father in an attempt to get the court to grant sole custody to the mother.
I am already seeking oversight for GALs to ensure that these deliberate acts by representatives of Child Advocates, Inc., to potentially harm children do not happen in the future.
If you have practiced in family law or sat as a judge and have any suggestions about judicial notice of matters involving the parties or children, or oversight of the use of GAL's please send those to me.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
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