Thursday, April 18, 2013

Determining the Best interest of the Child: Conflict of Interest in Supervised Parenting Time

This is the first in a three part series of articles about the 2006 Published opinion in re: The Marriage of J.M. v N.M. There are three distinct issues that are covered in this case that will be of benefit to anyone experiencing contested child custody.

Today I begin with the use of third-party evaluators and mental health professionals in shaping child custody decisions.

From the outset I note that this is not a case where there have been unjust attributions of parental fitness. This is the type of case where the appointment of a GAL / CASA is a good thing. It is not so much that there is a conflict between the parents over parenting time, but rather, it is the potential endangerment to the child's physical and emotional well-being that is at issue.

The decision by the Indiana Court of Appeals reveals the following about the father.

Father has “an anxiety disorder” and chose to treat this condition by consuming alcohol. I admonish that alcohol although viewed by a substantial portion of society as a medicinal cure-all is not and often exacerbates conditions and subsequent problems;
Father entered an inpatient treatment program for treatment of “severe anxiety,” obsessive compulsive disorder, major depression, and post-traumatic stress disorder as well as an “alcohol . . . problem.” Father terminated his treatment. The center suggested that he continue in-patient treatment elsewhere, which he did not do but did participate in intense therapy for the next four weeks. He was discharged by his therapist who recommended follow-up treatment as needed;
Father then filed a petition for dissolution. The parties entered into an agreed provisional order. The order provided parenting time for Father but specified that Father “shall not consume alcohol either before his parenting time or during his parenting time”; and that if Mother “reasonably believe[d]” he was “impaired as a result of alcohol consumption,” she had the right to cancel the visit unless Father submitted to a breathalyzer test administered by law enforcement and the results showed no more than a .02 blood alcohol content.

I have seen similar orders across a broad scope of topics that I have generally found unacceptable because of their subjective clauses that create an imbalance of power in the parenting relationship. Here however, Mother's subjective authority – if Mother reasonably believed he was impaired – is balanced by the objective – a BAC of >.02. At worst it results in a delay of parenting time but established a measurable standard to be applied to Mother's subjective evaluation.

The agreement further stipulated to the appointment of a GAL.

Mother filed a petition to modify asserting that Father’s various mental health and/or alcohol issues interfere with his ability to properly discipline and interact with the child in an age appropriate manner and stated her desires that he maintain a relationship with the child but that it is in the child’s best interest for parenting time to be conducted in a therapeutic setting. The parties agreed to amend that order to stipulate that Father's parenting time would be supervised consistent with recommendations of the GAL.

Testimony indicated that initial parenting time sessions went well. A three phase transition period was put into place for unsupervised parenting time. Before that was completed though Father engaged in inappropriate acts for the child's development and counselors indicated that the child became withdrawn. Mother indicated that the child would cling to her. Father eventually told the supervisors that he would no longer seek parenting time with his child.

That matter was eventually settled through arbitration. A report from the Choices counselors was included in the GAL report submitted to the Arbitrator; it recommended therapeutically supervised parenting time. The report of the GAL concluded with the recommendation that Father’s parenting time be supervised at Choices.

Father's former counselor when questioned about his feelings as to Father being a danger to the child stated, “No, not that he would physically be a danger.” The GAL relied upon and made substantial findings from the input of workers at Choices, the center where supervised parenting time had occurred. The arbitrator recommended that if father was to exercise parenting time that it would be supervised by Choices.

I make no aspersions as to the motives of Choices or their integrity but use this only for illustrative purposes. Employees of Choices provided opinion indicating that Father's parenting time should be supervised by their employer – essentially themselves.

When I present testimony in court I try to limit it to factual observations only. The opinions I give relate only to the factual circumstances but not to ultimate decisions to be made by the court. I believe it is overstepping a boundary for a witness to opine as to what the court's ruling should be.

My concern here is that what is essentially a witness who is financially invested in the case is making a recommendation to the court albeit via a GAL and an arbitrator.

In the next posting I will discuss the use of DVPO in case negotiations and finally I will caution you about the reliance upon attorneys to advocate for your parent-child relationship.

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©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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