Wednesday, February 19, 2014

Successfully mediating a high conflict Indiana child custody case which has been repeatedly contested

18 February 2014

Yesterday was a great day. In what has become on off my top five most litigated cases the parties are in at least a brief respite after reaching accord on all outstanding issues. This case first gained worldwide attention when the Madison County Indiana judge then presiding over the case ruled that the father was unfit to parent because he became agnostic in his religious beliefs. I quickly had that matter resolved by having the Indiana Court of Appeals issue a Stay. Ultimately the unlawful order was set aside.

The mother continued to litigate and most recently sought to have father's parenting time reduced to one half hour per month supervised. Although she actually wanted his parental rights terminated. Drugs/guns Shortly before that I had written about Self Imposed Parental Alienation but apparently she hadn't read it or did care. Additionally, she had recently alleged in a Petition for an Order of Protection that father had confined her at the police station and she was afraid to be there with him around. Multiple police officers, school officials, and an employer were ready and willing to appear at the upcoming hearing on her temporary protective order. But as that and about a dozen other filings from both parents were included in the settlement which included dismissing all outstanding matters, it won't be heard.

I am an ardent supporter of mediation even when it seems hopeless. In this case it was court ordered because of the overwhelming number of pending issues. After watching the mother go on the offensive for four years, which included bringing her now husband to a parenting time exchange to physically attack the father, I didn't expect much cooperation. The father initially thought it would be a perfunctory waste of time but he said “I was pleasantly surprised and hope that its a new path that leads to some peace in our children's lives.” I was likewise stunned at the culmination of over five hours of negotiation. This mother had gone on record in 2010 saying she had no intention of being conciliatory for the benefit of the children. Yet in the end the father got parenting time on an additional day each week, the 2013 IPTG implemented and other benefits that he sought. “I am satisfied with it as long as she will follow it” he says.

The mother may be likely to do so after obtaining new counsel last year. “Aaron Freeman [attorney for mother] seemed like he was pushing for mediation.” That is in clear contrast to Mr Anthony Lawrence who rebuked three prior mediation request but did dump mother as a client in 2013. The proper selection of or omission of an attorney may be the greatest facilitator of mediation. As father noted “the people who go in with the idea that I am not going to bend could benefit by having an attorney to help convince them to compromise.” But as for father who was ready to compromise and had previously sought mediation multiple times he did not “see a need for an attorney at all.” Although he did concede that there was “no way I would have felt comfortable doing it without you.”

As a mediator myself, who specializes in high conflict parenting, I seek clarity and precision in the agreements so that each party knows exactly what they are to do. This also gives the court greater power to enforce the agreement as an ambiguous order in unenforceable.[1] In a section that the attorney mediator had prepared about extra curricular activities it made reference to parents attending the children's “games” to which I requested that “performances, recitals and any other activities consistent with the spirit of this section” be included. In a hostile parenting situation one parent could clearly raise the issue that a child's performance in the arts is not a “game.” There was also a provision that required the parties to dismiss their respecting protective orders. As the orders had already been issued by a judge, I requested that the language be changed to the parties shall each petition the court to dismiss the order because only the judge may dismiss the order.[2] Father was appreciative that the “order is more specific, it has less room for interpretation” which is critical to making the mediation worthwhile.

Overall the father felt that “it was worthwhile” Although he didn't get what he had on his agenda going in he did achieve the most important goal of mediation as he articulated. “Its not what I wanted but it is more than I had. It is the pain of mediation, we both don't get what we want but both sides need to give and take for the benefit of the children.”

For anyone who is involved in a highly litigious or high conflict post marital parenting relationship or any other contested child custody case I strongly suggest trying mediation. It may not get you to exactly where you want to be but as this father realized, “I walked away feeling like this is a start.”

[1] In order to be held in contempt for failing to comply with a court order, a party must have willfully disobeyed the order. The order must have been so clear and certain that there could be no question as to what the party must do, or not do, and so there could be no question regarding whether the order is violated. A party may not be held in contempt for failing to comply with an ambiguous or indefinite order . . .
Bandini v. Bandini, 935 N.E.2d 253, 264-65 (Ind. Ct. App. 2010) (citations and quotation marks omitted).
[2] IC 34-26-5-12 Dismissal
     Sec. 12. If a petitioner:
        (1) files a written request for dismissal with a court; or
        (2) makes an oral request on the record to dismiss the case in open court;
the court shall without delay or any conditions dismiss the case without prejudice. [emphasis added]
As added by P.L.133-2002, SEC.56.

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